GROWTH  OF  AMERICAN  STATE 
CONSTITUTIONS 

FROM  1776  TO  THE  END  OF  THE  YEAR  1914 


BY 


JAMES  QUAYLE  DEALEY,  Pn.D. 

PROFESSOR  OF  SOCIAL  AND   POLITICAL  SCIENCE   IN  BROWN  UNIVERSITY 


GINN  AND  COMPANY 

BOSTON     •     NEW   YORK     •    CHICAGO     •    LONDON 
ATLANTA     •    DALLAS     •     COLUMBUS    •    SAN    FRANCISCO 


COPYRIGHT,  1915,  BY 
JAMES  QUAYLE  DEALEY 


ALL  RIGHTS    RESERVED 


jprcgfl 


C.INM  AND  COMPANY  •  PRO 
PK1HTORS  •  BOSTON  •  U.S.A. 


TO  G.  B.  D. 
NOS  CORDA  FRATRES 


328340 


PREFACE 

The  basis  for  this  study  was  a  series  of  articles  prepared 
at  the  suggestion  of  President  E.  Benjamin  Andrews  and 
syndicated  to  the  newspapers  in  the  year  1 899  under  the  head- 
ing "Tendencies  in  Recent  State  Constitutions."  In  1906 
the  articles  were  revised  and  published  in  the  Galveston 
Daily  News  and  the  Dallas  Morning  Neivs,  and  later  were 
published  as  a  pamphlet  for  general  circulation.  In  1907 
the  series  was  enlarged  and  published  as  a  supplement  num- 
ber in  the  Annals  of  the  American  Academy  of  Social  and 
Political  Science,  March,  1907.  This  pamphlet  has  now 
been  revised  so  as  to  include  the  changes  of  the  last  seven 
years,  and  ten  additional  chapters  have  been  added,  more 
than  trebling  the  original  material. 

Part  I  traces  the  history  of  the  state  constitutions  so  as  to 
show  the  trend  of  nearly  a  hundred  and  forty  years  in  the 
constitutional  development  of  the  commonwealths  of  the 
Union.  Part  II  is  in  general  the  revision  of  the  supple- 
ment to  the  Annals,  but  with  many  omissions  and  additions. 
Part  III  includes  constructive  suggestions  as  to  the  probable 
trend  of  changes  in  state  constitutions  during  the  next  few 
years.  The  work  as  a  whole  aims  to  call  attention  to  the 
great  importance  of  these  fundamental  laws,  and  hence  to 
the  necessity  of  devoting  to  their  improvement  far  more 
attention  in  the  future  than  has  been  given  to  them  in  the 
past.  In  many  respects  these  laws  concern  more  vitally  the 
interests  of  the  average  citizen  than  does  the  national  con- 
stitution, so  that  the  increasing  attention  paid  to  them  in 


vi  PREFACE 

recent  years  is  an  excellent  illustration  of  a  growing  civic 
interest  in  local  government  and  in  the  principles  of  democ- 
racy. This  interest  is  greatly  stimulated  by  the  increasing 
attention  given  to  state  constitutions  and  government  by  the 
departments  of  history  and  political  science  in  so  many 
American  colleges  and  universities.  For  such  classes  this 
work  possibly  may  be  considered  worthy  of  introduction  as 
a  textbook.  The  author  furthermore  hopes  that  citizens  and 
members  of  legislatures  and  constitutional  conventions  may 
find  these  chapters  to  some  slight  extent  helpful  in  further- 
ing a  knowledge  of  our  state  political  institutions. 

Acknowledgment  is  cheerfully  given  to  the  Legislative 
Reference  Bureau  of  the  State  of  Rhode  Island  for  kindly 
and  frequent  assistance  in  securing  information  in  respect 
to  constitutional  amendments,  and  to  the  Annals  for  per- 
mission to  republish  its  Supplement  revised. 

J.  Q.  DEALEY 
BROWN  UNIVERSITY 


CONTENTS 
PART  I 

HISTORY  OF  STATE  CONSTITUTIONS 

CHAPTER  PAGE 

I.     STATE  CONSTITUTIONS  IN  RELATION  TO  THE  FEDERAL 

GOVERNMENT  AND  THE  UNION  i 

II.    ADMISSION  or  STATES  INTO  THE  UNION      .        .        -13 

III.  THE  FIRST  STATE  CONSTITUTIONS  (1776-1800)   .        .       24 

IV.  GROWTH  OF  STATE  CONSTITUTIONS  DURING  THE  NEXT 

THIRTY  YEARS  (1801-1830)          ....  40 

V.    THE  PERIOD  OF  DEVELOPING  DEMOCRACY  (1831-1860)  47 
VI.     SECESSION,     RECONSTRUCTION     AND     READJUSTMENT 

(1861-1885) 56 

VII.     SECESSION,    RECONSTRUCTION     AND     READJUSTMENT 

(1861-1885)  (Continued) 70 

VIII.    RECENT  CHANGES  IN  CONSTITUTIONS  (1885-1914)      .  89 

PART    II 

PROVISIONS  OF  EXISTING  STATE 
CONSTITUTIONS 

IX.  THE  WRITTEN  CONSTITUTION  AND  ITS  BILL  OF  RIGHTS     116 

X.  RELIGIOUS  PROVISIONS  OF  THE  STATE  CONSTITUTIONS     128 

XI.  AMENDMENT  AND  REVISION  OF  CONSTITUTIONS  .        .     139 

XII.  SUFFRAGE  AND  ELECTIONS  .        .        .        .       •  .     150 

XIII.  THE  EXECUTIVE  DEPARTMENT     .        .        .        .        .160 

XIV.  THE  JUDICIAL  DEPARTMENT 172 

vii 


viii  CONTENTS 

CHAPTER  PAGB 

XV.    ORGANIZATION   OF   THE   LEGISLATIVE   DEPARTMENT 

AND  ITS  PROCEDURE 182 

XVI.    POPULAR  REPRESENTATION  IN  STATE  LEGISLATURES  194 
XVII.    LIMITATIONS  ON  THE  LEGISLATURE  .        .        .        .214 
XVIII.     CONSTITUTIONAL  REGULATION  OF  IMPORTANT  INTER- 
ESTS     229 

XIX.     CONSTITUTIONS  OF  THE  NEW  ENGLAND  STATES        .  242 


PART   III 

TREND  IN  STATE  CONSTITUTIONS 

XX.    REVIEW  OF  DEVELOPMENT  SINCE  1776     .        .        .     254 
XXI.    THE   ELECTORATE,   LEGAL    SOVEREIGNTY   AND   THE 

LEGISLATURE 270 

XXII.    THE    EXECUTIVE,    THE    ADMINISTRATIVE    AND    THE 

JUDICIARY 285 

BIBLIOGRAPHY 297 

INDEX 303 


GROWTH  OF  AMERICAN 
STATE   CONSTITUTIONS 


PART   I 
HISTORY  OF  STATE   CONSTITUTIONS 


CHAPTER  I 

STATE   CONSTITUTIONS  IN  RELATION  TO  THE 
FEDERAL   GOVERNMENT  AND   THE   "UNION" 

IN  writing  about  or  discussing  American  constitutional 
history  there  is  a  tendency  to  magnify  unduly  the  impor- 
tance of  the  federal  government  in  comparison  with  the 
governments  of  the  states.  This  tendency  was  natural 
enough  in  those  years  marked  by  heated  discussions  of 
states'  rights,  nullification,  and  secession,  and  has  even  its 
modern  justification  in  view  of  the  vast  powers  wielded  by 
the  federal  government  in  the  formulation  of  national  and 
international  policies.  The  idea  of  a  federation  is  even  yet 
so  unfamiliar,  that  almost  unconsciously  a  writer  tends  to 
fix  his  attention  on  what  may  be  considered  as  the  spec- 
tacular aspects  of  federal  government,  to  the  neglect  of  the 
more  prosaic  activities  and  powers  of  the  constituent  states. 
These,  in  consequence,  seem  to  be  mere  provinces  or  admin-* 
istrative  districts,  that  through  some  inscrutable  act  of 
Providence,  have  somehow  managed  to  acquire  powej^g  which 


AMKRICAV   STATE   CONSTITUTIONS 


interfere  with,  hinder,  and  obstruct  the 

tralizing,  and  unifying  policies  of  the  federal  government^ 

THE  STATES  AND  THE  UNION  l 

Unquestionably  in  any  discussion  of  the  American  gov- 
ernmental system,  the  federal  government  with  its  great 
general  powers  and  its  control  over  international  affairs 
should  never  be  slighted  ;  yet  on  the  other  hand  it  should 
not  be  forgotten  that,  while  any  particular  state  may 
seem  relatively  insignificant,  the  states  unitedly  perform 
by  far  the  largest  part  of  governmental  activities,  and  raise 
through  taxation  an  amount  much  larger  than  that  levied 
under  the  authority  of  congress.  Furthermore,  the  states 
do  not  derive  their  powers  from  the  federal  government,  as, 
for  example,  the  departments  of  France  do  from  their 
national  government,  but  instead,  both  the  states  and  the 
federal  government  derive  their  powers  directly  from  the 
Union  and  in  their  relationship  are  coordinate  one  to  the 
other.  Because  of  this  fact  it  is  really  impossible  to  under- 
stand the  American  constitutional  system  as  a  whole,  unless 
one  has  a  knowledge  of  the  constitutions  of  the  several  states 
in  the  Union,  so  as  to  comprehend  their  attitude  and  policy 
towards  the  political  problems  arising  in  the  government  of 
the  states.  Moreover,  the  several  policies  of  forty-eight 
different  states  towards  the  numerous  problems  of  govern- 
ment are  in  many  respects  so  diverse,  and  have  so  widely 
varied  at  different  periods,  that  the  state  constitutions, 
which  embody  these  variations,  are  in  themselves  full  of 
interest,  as  a  sort  of  cinema  toscope  of  the  times,  and  hence 
do  not  deserve  the  neglect  which  up  to  quite  recent  times 

1  See,  Johns  Hopkins  Studies,  Introduction  to  the  Study  of  the  Constitu- 
tional and  Political  History  of  the  States,  by  J.  Franklin  Jameson.  Series 
IV.  Also,  article  by  Woodrow  Wilson,  referred  to  at  end  of  Chap.  XXIII. 


STATE  CONSTITUTIONS  AND  THE  UNION        3 

has  been  their  portion.  For  it  must  be  remembered  that 
federal  powers  and  federal  problems  are  widely  different 
from  those  that  occupy  the  attention  of  the  states.  The' 
really  distinctive  feature  of  the  federal  government  by  con- 
trast with  the  states  is  that  its  powers  are  carefully  enu- 
merated and  delegated,  so  that  any  power  whatsoever, 
rightly  used  by  any  one  of  the  three  federal  departments  of 
government,  must  be  based  on  an  expressed  or  clearly  im- 
plied authorization  in  the  national  constitution.  By  contrast 
all  other  governmental  powers  not  thus  delegated  to  the 
federal  government  are  by  constitution  declared  to  belong 
"to  the  states  respectively  or  to  the  people"  excepting  a  few 
prohibitions  plainly  stated  in  the  constitution  itself.1 

Thus  the  great  mass  of  governmental  powers  in  regulation 
of  purely  domestic  affairs  within  the  borders  of  the  several 
states,  such  as  the  detail  of  local  government,  education, 
sanitation  and  policing,  is  by  constitution  delegated  to  the 
states  themselves ;  and  in  addition  some  extremely  impor- 
tant sovereign  powers  fall  to  their  share.  In  fact  the  states 
under  the  constitution  are  so  powerful  in  their  collective 
capacity  that  the  federal  government  by  comparison  seems 
impotent.  By  the  terms  of  the  national  constitution  the 

1  Readers  of  constitutional  history  are  familiar  with  national  struggles 
over  the  doctrines  of  implied  powers  and  strict  interpretation.  The  older 
issues  of  this  sort  are  practically  settled.  In  recent  years  the  discussion 
assumes  a  newer  aspect :  the  United  States  of  America,  being  a  sovereign 
state,  has  in  its  possession  all  possible  national  powers.  Since  the  federal 
government  has  by  delegation  certain  fundamental  national  powers  of  the 
Union,  such  as  the  war  and  treaty  powers,  by  implication  it  may  use,  when 
necessity  arises,  any  other  national  power  that  may  be  shown  to  be  for  the 
general  welfare,  even  though  in  so  doing,  it  seems  to  trespass  on  powers 
supposedly  in  the  possession  of  the  states.  An  opponent  to  this  newer 
doctrine  of  implied  powers  would  argue  that  particular  powers  only  are 
delegated  to  the  federal  government,  and  that  others  if  desired  must  be 
obtained  by  the  consent  of  the  coordinate  partner,  the  states,  through  an 
amendment  to  the  constitution. 


4  AMERICAN  STATE   CONSTITUTIONS 

states  formulate  their  own  fundamental  law  and  derive 
their  powers  directly  from  the  Union.  The  federal  govern- 
ment therefore  by  no  constitutional  possibility  can  add  to 
or  diminish  the  powers  of  the  states,1  or  deprive  any  one  of 
them  permanently  of  its  equal  status  in  the  Union.2  The 
Union  under  the  constitution  is  itself  indestructible  and  is 
composed  of  indestructible  states,3  but  the  federal  govern- 
ment has  no  such  status.  Two  thirds  of  the  states  have  the 
right  to  have  a  convention  called  for  the  purpose  of  pro- 
posing amendments  to  the  constitution,  and  these  when 
ratified  by  the  affirmative  votes  of  three  fourths  of  all  the 
states  become  part  of  the  constitution.  Such  amendments 
might  alter  or  even  destroy  any  part  or  all  of  the  federal 
government,  substituting  for  it  a  new  form  of  government, 
organized  on  such  principles  and  in  such  manner  as  would 
seem  best  to  the  states  and  most  likely  to  effect  their  safety 
and  happiness.4  Such  a  contingency  is  in  no  respect  an- 
ticipated, and  legally,  as  already  said,  the  federal  govern- 
ment and  the  states  collectively  are  in  theory  coordinate, 
since  each  traces  its  powers  to  the  national  constitution 
and  neither  is  authorized  to  interfere  with  the  rights  of  the 
other  as  denned  by  the  constitution  and  umpired  by  the 

1  It  is  understood  that  there  are  certain  concurrent  powers,  such  as  that 
in  respect  to  bankruptcy,  in  which  the  extent  of  a  state's  jurisdiction  seems 
to  be  determined  by  the  action  of  the  federal  government,  but  in  fact  the 
state's  authority  to  act  in  the  matter  is  derived  from  the  constitution,  not 
from  any  act  of  congress.  The  federal  government  cannot  delegate  to  the 
states  any  power  exclusively  given  to  it,  but  in  the  case  of  concurrent  powers 
it  has  the  right  to  determine  how  these  may  be  best  shared  so  as  to  insure 
the  general  welfare. 

8  A  rebellious  state  when  conquered  may  have  its  affairs  placed  into  the 
hands  of  a  military  governor  as  a  sort  of  "  receiver, "  but  only  for  the  purpose 
of  reorganizing  a  constitutional  form  of  government,  so  that  the  state  may 
resume  its  place  in  the  Union. 

'Texas  vs.  White,  7  Wallace,  700  (1868). 

4  Declaration  of  Independence,  first  two  paragraphs. 


STATE  CONSTITUTIONS  AND  THE  UNION        5 

supreme  court  of  the  United  States.  Yet  if  by  any  possi- 
bility there  should  arise  friction  or  open  antagonism  be- 
tween these  coordinate  parts,  the  states  so  obviously  control 
the  really  important  sovereign  powers  of  the  United  States, 
that  the  federal  government  is  seen  to  be  a  mere  govern- 
mental agency,  organized  to  serve  the  states  and  to  assist 
them  in  expressing  the  national  will.  In  short,  the  states 
collectively  could  destroy  at  short  notice  the  entire  federal 
government,  but  this  by  contrast,  with  all  of  its  powers, 
could  not  deprive  even  Nevada  (our  pettiest  state)  of  any 
one  of  its  constitutional  rights,  nor  of  its  place  in  the  Union. 
This  coordinate  relationship  between  state  and  federal 
government  is  best  seen  when  their  respective  laws  seem  to 
be  in  conflict.  If  by  chance  a  state  constitution  or  some 
legislative  statute  in  harmony  with  it  happens  to  conflict 
with  an  act  of  congress,  the  national  supreme  court  does 
not  assume  that  ipso  facto  the  state  law  is  unconstitutional ; 
nor  on  the  other  hand  that  the  act  of  congress  is  unconsti- 
tutional. Rather  it  turns  to  the  national  constitution, 
which  is  the  fundamental  law  for  both  state  and  federal 
government,  and  determines  from  this  whether  congress  or 
the  state  has  exceeded  its  powers  in  legislation,  and  then 
renders  its  decision  accordingly.  Thus  the  states  in  the' 
performance  of  their  legal  powers,  pass  statutes,  administer 
the  law,  supervise  local  government,  and  adjudicate  cases, 
without  interference  from  the  federal  government,  which 
in  its  turn  performs  its  duties  without  hindrance  from  the 
individual  states,  even  though,  as  already  explained,  these 
collectively  are  autocratic  and  may  wield  at  will  the  full 
sovereign  powers  of  the  nation.1 

1  The  relationship  indicated  in  the  preceding  paragraphs  between  the 
Union,  the  States,  and  the  Federal  Government,  may  be  illustrated  by  the 
three  following  diagrams,  explanatory  of  these  relationships :  — 


AMERICAN  STATE   CONSTITUTIONS 


THE  PRIORITY  OF  THE  STATES 

From  the  preceding  part  of  this  chapter  one  might  be 
prepared  to  admit  that  from  the  legal  point  of  view  at 
least,  the  study  of  American  state  constitutions  ought  not 
to  be  neglected.  There  is  however  another  aspect  of  this 
question  that  should  not  be  ignored.  From  the  historical 
standpoint  state  constitutions  have  a  real  significance 
since  they  preceded  in  time  the  present  national  constitu- 
tion, which  in  fact  embodies  in  its  most  essential  features  a 
type  of  governmental  organization  already  familiar  to  the 
states  of  the  revolutionary  period  through  their  colonial 
governments  and  their  first  constitutions.  For,  by  the 
time  the  federal  convention  met  in  1787,  the  dominant 
features  of  American  constitutionalism  were  fairly  well 


I.  The  constitution,  or  funda- 
mental law  of  the  United 
States  of  America  was 


and  may  be 


II.  The  United  States  of  America  is 
a  sovereign  state,  organized  as 
a  federation,  which  is  made 
up  of 


(a)  formulated   by  (i)    the   federal 

convention  of  1788,  cooperat- 
ing with  and  acting  in  place 
of  the  continental  congress; 
(2)  the  several  ratifying  state 
conventions,  made  up  of  rep- 
resentatives of  the  people, 
cooperating  with  and  acting  in 
place  of  the  state  legislatures. 

(b)  amended  by  the  joint  action  of 

(1)  congress  (or,  if  two  thirds 
of  the  states  so  prefer,  by  a 
national      convention),      and 

(2)  the  state  legislatures  (or, 
if  congress  so  prefers,  by  state 
conventions). 

(1)  The  federal  government, 

(2)  The  forty-eight  states  or  com- 

monwealths. 

(These  two  parts  are  coordi- 
nate one  to  the  other,  but  are 
both  subordinate  to  the  United 
States  of  America,  or  the 
"Union.*') 


STATE  CONSTITUTIONS  AND  THE  UNION 


established  in  most  of  the  thirteen  states.  Fundamental 
law  had  become  or  was  becoming  differentiated  from 
statutory  law ;  and  was  formulated  into  a  definite,  written 
document,  amended  by  a  more  complex  and  difficult  pro- 
cedure than  that  used  for  ordinary  legislation ;  the  consti- 
tutional convention  had  become  a  familiar  institution  and 
through  the  example  of  Massachusetts  the  principle  was 


III.  From  another  standpoint  the 
government  of  the  United 
States  of  America  may  be  con- 
sidered as  divisible  into  four 
branches  or  departments. 


(1)  The    executive:     consisting    of 

(a)  the  president  and  the  heads 
of  the  administration,  (7>)  the 
forty-eight  state  governors 
and  the  heads  of  their  adminis- 
trative systems. 

(2)  The   legislative:     consisting   of 

(a)  the  national  congress,  and 

(b)  the     states'     lawmaking 
agencies   (legislatures,  consti- 
tutional conventions,  the  elec- 
torate when  using  powers  of 

"initiative"  and  "referen- 
dum"). 

(3)  The     judicial :      consisting     of 

(a)  the  supreme  court  and  the 
inferior  courts  of  the  United 
States,  and  (b)  the  supreme 
and  other  courts  of  the  states. 

(4)  The  electorate  (using  executive 

powers  in  the  choice  and  recall 
of  officials,  legislative  powers 
through  the  initiative  and 
referendum,  and  judicial 
powers  through  jury  service) : 
consisting  of  (a)  the  electorate 
in  national  elections,  and 
(6)  the  several  electorates  in 
the  states. 

(Note).  It  will  be  remembered  that 
the  qualifications  of  both  the 
natipnal  and  the  state  elec- 
torates are  determined  by  the 
states,  subject  to  the  few  regu- 
latory provisions  of  the 
national  constitution. 


8  AMERICAN  STATE  CONSTITUTIONS 

gaining  ground  that  fundamental  law  needed  for  its  validity 
a  ratification  by  the  electorate  on  referendum.  Moreover, 
the  three  great  departments  of  government  were  separated 
in  accordance  with  English  and  colonial  custom,  a  much 
more  important  influence  than  the  much-discussed  theory 
of  Montesquieu ; 1  the  governor's  veto  was  coming  into  use ; 
state  judiciaries  had  on  several  occasions  assumed  the  right 
to  declare  acts  of  state  legislatures  to  be  unconstitutional ; 2 
and  formal  bills  of  rights  were  regularly  incorporated  into 
the  constitutions  as  checks  on  possible  legislative  tyranny. 
The  federal  convention,  therefore,  in  formulating  a  na- 
tional constitution  did  not  on  the  whole  originate  anything 
really  new  in  government,  but  rather  carefully  culled  from 
the  customs  and  experiences  of  the  states  those  provisions 
that  seemed  to  work  best  in  practice  and  united  these  into  as 
logical  a  document  as  the  necessity  for  compromise  per- 
mitted, with  such  additions  as  seemed  necessary  for  the 
rounding  out  of  a  national  system.3  It  is  incorrect,  there- 
fore, to  say,  as  some  do,  that  the  national  constitution  has 
been  to  any  considerable  extent  the  model  followed  by 
the  states  after  the  formation  of  the  Union,  as  they  assumed 
statehood  or  revised  or  amended  their  constitutions. 

1  Spirit  of  Laws,  Book  xi.     The  theory  of  Montesquieu  would  really 
separate  the  three  departments  so  that  each  would  use  those  powers  that 
properly  belong  to  it,  the  harmony  of  the  whole  being  secured  by  a  care- 
fully devised  "check  and  balance"  system.     This  theory  finds  its  best 
exemplification  in  the  federal  government,  in  which  system  the  executive 
powers  are  for  the  most  part  really  in  the  possession  of  that  department  of 
government.     In  the  states  by  contrast,  as  in  the  English  parliamentary 
system,  the  division  of  powers  is  formal  and  rather  nominal,  since  as  a  rule 
the  lawmaking  department  has  a  quite  complete  control  over  administra- 
tion (an  executive  power),  and  shares  with  the  executive  in  the  exercise  of 
most  of  the  few  powers  confided  to  him  by  constitution. 

2  See,  Bondy,  Separation  of  Powers,  chap.  vii. ;  and  Haines,  American 
Doctrine  of  Judicial  Supremacy,  especially  Part  II. 

3  See,    Bryce,    American    Commonwealth,  Vol.  I.    pp.  670-3,  note    to 
chap.  iv. 


STATE  CONSTITUTIONS  AND  THE  UNION        9 

For,  a  state  when  revising  its  constitution  rarely  departs 
to  any  considerable  extent  from  its  previous  type  of  or- 
ganization. Even  when  the  first  state  constitutions  were 
formed,  they  were  in  the  main  merely  the  colonial  charters 
and  governmental  organizations,  translated  with  necessary 
modifications  into  state  constitutions.1  This  same  state- 
ment would  hold  true  also  of  the  first  constitutions  of  Con- 
necticut (1818)  and  Rhode  Island  (1842),  which  in  substance 
are  modifications  of  the  charters  obtained  from  King  Charles 
in  the  seventeenth  century.  So  likewise  the  Southern 
Confederacy,  in  formulating  a  constitution  in  1861,  merely 
adapted  the  national  constitution  to  the  new  order  of  things. 
A  similar  principle  holds  in  respect  to  the  constitutions  of 
new  states.  These  are  largely  determined  by  their  former 
historical  connection,2  or  by  their  territorial  framework  of 
government,  or  by  the  influence  on  a  constitutional  conven- 
tion of  prominent  members  who  are  familiar  with  the  con- 
stitutions of  the  states  of  their  birth.3  Thus  the  real 
models  consistently  followed  in  making  or  revising  consti- 
tutions have  been  the  constitutions  of  existing  states  and 
territories.  In  the  case  of  states  created  from  national 
territory,  the  great  model  contained  in  the  famous  Ordinance 
of  1787  became  the  basis  for  later  territorial  organization 
and  thus  impressed  its  principles  on  the  states  of  the  north- 
west and  later  on  the  region  west  of  the  Mississippi  River.4 

1  See,  Annals,  Vol.  I.  April,  1891,  Article  by  Professor  Morey  on  the 
Genesis  of  a  Written  Constitution. 

2  As,  for  example,  Kentucky  and  West  Virginia  with  Virginia,  or  Maine 
with  Massachusetts. 

3  The  constitution  formed,  for  instance,  in  Texas,  in  April,  1833,  was  an 
almost  verbatim  reproduction  for  the  most  part,  of  the  constitution  of 
Tennessee.     Houston,  the  chairman  of  the  Committee  on  Constitution,  had 
also  been  governor  of  Tennessee. 

4  The  Ordinance,  for  example,  required  that  the  territory  have  three 
departments  of  government;    a  governor,  a  court,  and  a  legislature,  and 


io  AMERICAN   STATE   CONSTITUTIONS 

On  the  other  hand,  it  might  be  said  in  behalf  of  the  theory  of 
the  imitation  of  the  national  constitution  by  the  states, 
that  in  so  far  as  certain  features  found  in  the  constitutions 
of  the  states  under  the  confederation  were  selected  for 
insertion  in  the  national  constitution,  these,  so  to  speak, 
became  standardized,  thus  forming  natural  patterns  for 
later  imitation. 

FLEXIBILITY  OF  STATE  CONSTITUTIONS 
There  is,  finally,  another  reason  why  state  constitutions 
are  deserving  of  larger  study.  The  national  constitution  is 
a  rigid  document  amended  only  with  great  difficulty,  so  that 
of  necessity  needed  alterations,  if  made  at  all,  must  usually 
come  through  legal  interpretation  and  judicial  decision. 
This  method  of  modifying  fundamental  law  by  what  is 
virtually  judicial  legislation  has  its  natural  limitations,  and 
in  consequence  the  fundamentals  of  federal  organization 
and  jurisdiction  remain  practically  the  same  as  they  were 
one  hundred  and  twenty-five  years  ago.  On  the  other 
hand,  the  older  states  have  for  the  most  part,  freed  them- 
selves from  difficult  amending  processes,  and  the  newer 
states  invariably  prefer  a  simple  method  of  amendment 
and  revision.  In  consequence,  the  meaning  and  develop- 
ment of  the  national  constitution  is  best  traced  through 
the  many  authoritative  decisions  made  by  the  national 
supreme  court  in  interpreting  the  constitution;  but  by 
contrast  the  interpretations  given  by  state  supreme  courts 
of  their  respective  constitutions  are  of  far  less  permanent 
importance,  since  the  real  history  of  the  constitutional 

that  the  last  named  should  be  based  on  a  "proportionate  representation  of 
the  people."  It  also  provided  for  religious  liberty,  a  system  of  education, 
and  the  guaranties  of  jury  trial  and  habeas  corpus ;  forbade  slavery,  and 
in>i>tc-d  that  in  the  formulation  of  any  future  constitution,  the  government 
should  be  republican  in  spirit  and  in  form. 


STATE  CONSTITUTIONS  AND  THE  UNION      n 

development  of  the  states  can  best  be  traced  decade  by  dec- 
ade in  the  many  amendments  and  revisions  made  so  as  to 
satisfy  popular  demands  for  reforms  in  existing  systems. 
Thus  from  state  constitutions  far  better  than  from  the 
national  constitution  can  be  traced  the  really  important 
stages  in  the  march  of  American  democracy  since  1776, 
seeing  that  the  states  are  the  agencies  through  which  the 
ordinary  daily  life  of  the  citizens  is  regulated  and  hence 
they  are  much  more  closely  in  touch  with  popular  demands. 
Through  the  varying  decisions  of  the  national  supreme 
court  one  may  study  the  movements  of  national  unity, 
expansion,  centralization,  imperialism,  and  foreign  policy ; 
but  in  the  state  constitutions  can  best  be  studied  the  class 
struggle  between  the  intrenched  conservatism  of  propertied 
interests  and  the  advancing  radicalism  of  direct  democracy, 
between  the  grip  of  the  "interests"  in  boss-ridden  states 
and  the  enthusiastic  and  perhaps  somewhat  visionary 
idealism  of  the  newer  democracy.  One  might  almost  say 
that  the  romance,  the  poetry  and  even  the  drama  of  Ameri- 
can politics  are  deeply  embedded  in  the  many  state  consti- 
tutions promulgated  since  the  publication  of  Paine's 
Common  Sense,  the  Declaration  of  Independence,  and 
the  Virginia  Bill  of  Rights.  For  in  them  are  recorded  the 
growth  in  the  notion  of  rights,  irrespective  of  race,  sex  or 
economic  status ;  the  rise  of  manhood  suffrage,  its  extension 
to  women  and  modern  reactions  against  the  principle  of 
unrestricted  voting;  and  the  developing  emphasis  on 
morals  in  provisions  about  dueling,  lotteries,  divorce, 
polygamy  and  the  prohibition  of  the  manufacture  and  sale 
of  liquor.  One  may  cynically  note  the  earlier  belief  that 
legislators  were  men  of  "wisdom  and  virtue,"  followed  by  a 
conviction  expressed  in  most  constitutions  that  they  are 
likely  to  be  corrupt  and  incompetent  and  regularly  prone 


12  AMERICAN  STATE   CONSTITUTIONS 

to  bribery.  In  the  southern  constitutions  of  the  sixties  can 
be  seen  the  joyous  assertion  of  states'  rights  and  a  willing- 
ness to  appeal  to  arms,  and  then  the  disgrace  of  recantation 
at  the  point  of  the  bayonet,  the  humiliation  of  disfranchise- 
ment,  the  'bitterness  of  political  subordination  to  enfran- 
chised slaves  and  "  scalawags,"  followed  in  the  seventies  by 
a  return  of  the  whites  to  power,  as  shown  by  the  elimination 
of  obnoxious  provisions  from  the  reconstruction  constitu- 
tions. Such  and  similar  changes  may  be  traced  in  the 
state  constitutions,  which  unquestionably  will  in  later  years 
be  considered  as  exponents  of  the  conditions  and  demands 
of  their  times,  and  as  among  our  most  valued  records  of 
social,  political,  and  constitutional  history. 


CHAPTER  II 
ADMISSION  OF   STATES  INTO  THE  UNION 

As  is  well  known,  the  legal  birthday  of  the  United  States 
of  America  is  July  fourth,  1776,  since  on  that  date  dele- 
gates of  the  colonies  in  the  continental  congress  voted  a 
Declaration  of  Independence.  Yet  the  colonies  had 
previously  by  their  actions  virtually  asserted  their  inde- 
pendence from  England,  and  some  had  even  taken  formal 
action;  the  state  of  Rhode  Island,  for  instance,  celebrates 
May  fourth  as  its  day  of  independence.  When  the  colonies 
asserted  their  freedom  from  English  control,  they  became 
for  all  domestic  purposes  free  and  independent  states; 
although,  as  the  mother  country  did  not  admit  their  right 
to  freedom,  the  revolutionary  war  had  to  be  fought  and  a 
treaty  of  peace  made  before  their  independence  was  fully 
acknowledged  internationally. 

As  new  and  independent  states,  each  had  the  right  to 
readjust  its  form  of  government  as  it  might  deem  best,  so 
that  the  states  one  by  one  reorganized  the  framework  of 
their  governments  and  with  later  experience  made  other 
readjustments  so  as  to  meet  newer  emergencies  and  chang- 
ing conditions.  This  period  of  self-government  and 
adaptation  may  loosely  be  considered  as  ending  with  the 
eighteenth  century,  by  which  time  the  inefficient  con- 
federacy of  the  earlier  years  had  yielded  place  to  a  vigorous 
and  effective  federation.  Under  the  federation  the  states 
were  no  longer  sovereign  and  independent,  though  this 

13 


14  AMERICAN   STATE   CONSTITUTIONS 

disputed  point  was  not  finally  settled  until  the  civil  war. 
Yet,  subject  to  the  provisions  of  the  new  national  constitu- 
tion, each  state  had  the  right  to  formulate  its  own  local 
constitution,  and  to  make  such  modifications  in  it  as  from 
time  to  time  might  seem  necessary.  Changes  of  some  sort 
became  inevitable  with  the  passing  of  years,  so  that  the 
methods  of  procedure  developed,  and  the  extent  of  changes 
made,  naturally  form  a  constitutional  study  of  real  im- 
portance. Such  changes,  if  few  or  comparatively  insignifi- 
cant, came  to  be  effected  by  the  process  of  amendment ;  if 
numerous  and  fundamental,  they  were  made  by  the  process 
of  revision.  Amendments  as  a  rule  are  at  present  effected 
by  legislatures,  revisions  by  constitutional  conventions, 
ratified  in  each  case  with  rare  exceptions  by  a  popular  vote 
on  referendum.  Occasionally,  legislatures  have  assumed 
the  right  to  make  or  revise  constitutions,  but  this  is  not  in 
accord  with  present  custom,  and  should  be  justified,  if  at 
all,  on  the  score  of  urgent  necessity.  In  a  study  of  state 
constitutions,  therefore,  one  should  keep  in  mind  that  con- 
stitutions are  made,  de  now,  amended  and  revised;  and 
that  legislatures,  conventions  and  electorates  are  the 
agencies  through  which  such  lawmaking  is  performed. 
In  Chapter  XI  attention  will  be  called  to  commissions  as 
agencies  occasionally  used  for  the  formulation  of  amend- 
ments or  revisions. 

If  the  United  States  consisted  merely  of  the  original 
thirteen  states  of  the  confederation,  the  study  of  American 
state  constitutions  would  be  simple  and  brief.  There  are 
at  present,  however,  forty-eight  states  and,  as  all  know,  the 
newer  thirty-five  states  far  exceed  the  original  thirteen  in 
area,  wealth,  population  and  importance.  Under  such  condi- 
tions it  may  be  well  to  explain  the  process  whereby  so  many 
additions  have  been  made  to  the  list  of  states  in  the  Union. 


ADMISSION  OF  STATES  15 

STATES  ADDED  TO  THE  UNION 

At  the  time  of  the  formation  of  the  national  government 
in  1788  eleven  states  only  composed  the  United  States  of 
America.  Within  two  years  the  two  remaining  states 1  of  the 
old  confederation  ratified  the  new  constitution  and  were 
admitted  into  the  Union  by  formal  vote.  The  thirty-five 
additions  made  since  that  time  may  be  divided  loosely  into 
two  classes:  (i)  those  made  by  the  partition  of  existing 
states,  including  one  by  annexation ; 2  and  (2)  the  thirty 
states  carved  out  of  the  national  domain.  For  complete- 
ness' sake,  the  process  whereby  these  acquired  their  first 
constitutions  and  became  states  will  now  briefly  be  ex- 
plained. 

I.  (i)  Vermont,  the  first  state  admitted  outside  of  the 
original  thirteen,  was  claimed  as  part  of  their  territory  by 
Massachusetts,  New  Hampshire,  and  especially  New  York. 
These  claims  were  denied  by  the  settlers  of  that  region  who, 
when  the  Revolution  began,  sent  delegates  to  a  convention, 
which  January,  1777,  declared  Vermont  to  be  a  free  and 
independent  state.  The  convention  after  appointing  a  com- 
mittee to  draft  a  constitution,  then  summoned  a  second 
convention  to  pass  upon  the  draft  prepared  by  this  com- 
mittee. This  second  convention  met  July  second,  1777, 
and  later  adopted  and  put  into  effect  the  constitution,  with- 
out referendum,  although  there  was  an  adjournment  of 
the  convention  for  five  months  (July-December)  so  as  to 
allow  the  citizens  an  opportunity  to  express  opinions  on 
the  proposed  constitution.  Under  this  constitution  Ver- 
mont fought  for  its  independence,  came  to  terms  with  its 
covetous  neighbors,  ratified  the  federal  constitution 

1  North  Carolina,  Nov.  21,  1789;  Rhode  Island,  May  29,  1790. 

2  Kentucky,  Vermont,  Maine,  Texas,  West  Virginia. 


1 6  AMERICAN   STATE   CONSTITUTIONS 

January  tenth,  1791,  and  some  two  months  later  was  ad- 
mitted by  congress  as  the  fourteenth  state  of  the  Union. 

(2)  The  second  request  for  admission  came  from  the 
the  western  frontier  counties  of  Virginia,  now  known  as 
Kentucky.     The  national  constitution  provides/  that  "no 
new  state  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  state,  nor  any  state  be  formed  by  the  junction 
of  two  or  more  states  or  parts  of  states,  without  the  consent 
of  the  legislatures  of  the  states  concerned,  as  well  as  of 
the  congress."     Kentucky  therefore  in  its  desire  to  become 
a  separate  state  had  to  secure  the  consent  of  Virginia  as  well 
as  that  of  congress.     After  many  preliminaries  a  Kentucky 
convention  met,  July  twenty-sixth,  1790,  which  voted  a 
separation  in  accordance  with  terms  set  by  Virginia,  and 
then  summoned  a  constitutional  convention.     Meanwhile 
in  February,  1791,  the  congress  of  the  United  States  passed 
an  act  giving  consent  to  the  formation  of  the  new  state. 
The  convention  met,  April,  1792,  prepared  a  constitution 
and  without  referendum  ordered  it  into  effect,  June  first, 
1792,  on  which  date  the  new  state  became  a  member  of  the 
Union. 

(3)  In  the  same  manner,  at  the  desire  of  Maine,  the 
legislature  of  Massachusetts  in  1819  gave  consent  to  the 
formation  of  the  district  of  Maine  into  a  separate  state.     A 
convention  was  then  called  in  that  district,  and  the  consti- 
tution thus  prepared  was  later  approved  at  the  polls.     A 
petition  was  then  presented  to  congress,  accompanied  by  a 
copy  of  the  constitution,  asking  that  Maine  be  admitted  as 
a  state.     This  petition  was  granted  and  a  new  state  thus 
added  to  the  Union. 

(4)  The  case  of  Texas  differs  from  the  preceding  in  that 
its  territory  was  not  under  the  American  flag  but  originally 

1  Article  IV.,  Section  3. 


ADMISSION  OF  STATES  17 

formed  a  part  of  Mexico.  In  1835  Texas  declared  its 
independence  of  Mexico  and  virtually  secured  it  in  March  of 
the  following  year  by  the  battle  of  San  Jacinto.  As  an 
independent  state  under  its  own  flag  it  found  itself  burdened 
with  debt  in  an  attempt  to  maintain  a  free  existence  on 
scanty  resources.  It,  therefore,  opened  up  negotiations 
with  the  United  States  and  by  agreement  a  joint  resolu- 
tion for  annexation  was  passed,  first  by  the  congress 1 
and  then  by  the  legislature  of  Texas.2  Under  the  provisions 
of  an  enabling  act  Texas  was  authorized  to  call  a  conven- 
tion, which  framed  a  constitution,  August,  1845.  This  was 
ratified  at  the  polls  in  October,  and  some  two  months  later 
Texas  was  formally  received  as  a  state  into  the  Union. 

(5)  The  case  of  West  Virginia  was  in  form  like  that  of 
Kentucky  or  Maine.  When  Virginia  seceded  from  the 
Union  in  1861,  the  people  of  the  western  mountainous 
part  of  the  state,  who  were  opposed  to  slavery,  refused  to 
join  in  the  movement  and  organized  at  Wheeling  a  loyal 
government  which  claimed  to  be  the  legal  government  of 
Virginia.  The  legislature  of  this  government  then  sub- 
mitted to  the  voters  a  referendum  asking  whether  there 
should  be  organized  a  new  state  to  be  composed  of  the 
forty  western  counties.  The  vote  being  strongly  affirma- 
tive, a  convention  was  summoned  which  prepared  and 
submitted  a  constitution.  This  was  ratified  April  third, 
1862.  The  legislature  then  in  May  gave  consent  to  the 
formation  of  the  new  state  and  congress  was  petitioned  to 
allow  its  admission.  This  consent  was  given,  December 
thirty-first,  on  condition  that  a  change  be  made  in  the 
slavery  clause  of  the  proposed  constitution.  This  change 
was  approved  by  the  convention,  February  twelfth,  and  by 
the  voters,  March  twenty-sixth,  and  on  notification  of  this 

1  Signed  by  the  President,  March  i,  1845.  2  July  4>  1845. 


1 8  AMERICAN  STATE  CONSTITUTIONS 

the  President  of  the  United  States,  June  nineteenth,  pro- 
claimed the  admission  of  West  Virginia  into  the  Union. 

STATES  FORMED  FROM  THE  NATIONAL  DOMAIN 

II.  The  remaining  thirty  states  were  all  formed  from  the 
national  domain,  from  lands  either  ceded  by  the  original 
states  to  the  Union,  or  obtained  by  it  from  other  nations 
through  treaty,  war,  or  purchase.  Over  these  lands  con- 
gress had  jurisdiction  and  under  the  constitution  might 
in  its  discretion  organize  from  time  to  time  suitable  portions 
into  republican  forms  of  government,1  and  admit  them  as 
states  into  the  Union.  This  provision  has  been  of  pro- 
found significance  in  our  constitutional  history,  since 
congress  following  the  precedent  of  the  Ordinance  of  1787 
has  definitely  insisted  on  democratic  republican  forms  of 
government,  so  that  these  thirty  states  were  kept  at  the 
start  from  tendencies  towards  an  undue  conservatism.2 

The  general  practice  has  been,  first,  to  encourage  settle- 
ment by  generous  homestead  laws  and  then  to  organize 
portions  into  territories,  each  having  a  form  of  government 
not  unlike  that  of  a  state,  except  that  an  act  of  congress 
takes  the  place  of  a  constitution.  When  a  territory  is 
considered  by  congress  to  be  sufficiently  populous,  and  in 
other  respects  also  worthy  of  statehood,  an  enabling  act 
is  passed  which  provides  for  the  calling  of  a  constitutional 
convention,  sets  forth  the  usual  conditions  with  which 
the  convention  must  comply,3  and  often  dictates  special 

1  Article  IV,  Sections  3  and  4.     For  an  explanation  of  the  steps  leading 
up  to  the  Ordinance  of  1787,  see,  Evolution  of  the  American  System  of 
Forming  and  Admitting  New  States  into  the  Union,  by  George  H.  Alden, 
Annals,  Vol.  XVIII.  3,  November,  1901. 

2  The  changes  demanded  by  congress  in  the  constitution  of  New  Mexico 
illustrate  this,  see,  p.  1 10. 

1  Such  as  acceptance  of  boundaries,  republican  form  of  government,  etc. 


ADMISSION  OF  STATES  19 

conditions  by  requiring  the  insertion  into  the  constitution 
of  certain  provisions  in  the  form  of  an  "  irrevocable  com- 
pact "  between  congress  and  the  would-be  state.1  When  the 
constitution  made  by  the  convention  has  been  ratified  by 
the  voters  of  the  territory,  congress  may  then,  if  all  condi- 
tions have  been  complied  with,  pass  an  act  admitting  the 

1  One  of  the  most  famous  of  these  is  that  of  Utah,  which  reads  as  follows : 
ARTICLE  III 

ORDINANCE 

The  following  ordinance  shall  be  irrevocable  without  the  consent  of  the 
United  States  and  the  people  of  this  State : 

First.  Perfect  toleration  of  religious  sentiment  is  guaranteed.  No  in- 
habitant of  this  State  shall  ever  be  molested  in  person  or  property  on  account 
of  his  or  her  mode  of  religious  worship ;  but  polygamous  or  plural  marriages 
are  forever  prohibited. 

Second.  The  people  inhabiting  this  State  do  affirm  and  declare  that  they 
forever  disclaim  all  right  and  title  to  the  unappropriated  public  lands  lying 
within  the  boundaries  hereof,  and  to  all  lands  lying  within  said  limits  owned 
or  held  by  any  Indian  or  Indian  tribes,  and  that  until  the  title  thereto  shall 
have  been  extinguished  by  the  United  States  the  same  shall  be  and  remain 
subject  to  the  disposition  of  the  United  States,  and  said  Indian  lands  shall 
remain  under  the  absolute  jurisdiction  and  control  of  the  Congress  of  the 
United  States.  The  lands  belonging  to  citizens  of  the  United  States  resid- 
ing without  this  State  shall  never  be  taxed  at  a  higher  rate  than  the  lands 
belonging  to  residents  of  this  State;  nor  shall  taxes  be  imposed  by  this 
State  on  lands  or  property  herein  belonging  to  or  which  may  hereafter  be 
purchased  by  the  United  States  or  reserved  for  its  use ;  but  nothing  in  this 
ordinance  shall  preclude  this  State  from  taxing,  as  other  lands  are  taxed, 
any  lands  owned  or  held  by  any  Indian  who  has  severed  his  tribal  relations 
and  has  obtained  from  the  United  States  or  from  any  person,  by  patent  or 
other  grant,  a  title  thereto,  save  and  except  such  lands  as  have  been  or  may 
be  granted  to  any  Indian  or  Indians  under  any  act  of  Congress  containing 
a  provision  exempting  the  land  thus  granted  from  taxation,  which  last- 
mentioned  lands  shall  be  exempt  from  taxation  so  long,  and  to  such  extent, 
as  is  or  may  be  provided  in  the  act  of  Congress  granting  the  same. 

Third.  All  debts  and  liabilities  of  the  Territory  of  Utah,  incurred  by 
authority  of  the  legislative  assembly  thereof,  are  hereby  assumed  ai\d  shall 
be  paid  by  this  State. 

Fourth.  The  legislature  shall  make  laws  for  the  establishment  and 
maintenance  of  a  system  of  public  schools,  which  shall  be  open  to  all  the 
children  of  the  State  and  be  free  from  sectarian  control. 


20  AMERICAN  STATE   CONSTITUTIONS 

territory  as  a  state  in  the  Union ;  or,  in  case  of  prospective 
adjournment  before  final  action  in  the  territory  has  been 
taken,  it  may  authorize  the  president  to  proclaim  the  admis- 
sion of  the  state,  when  he  is  satisfied  that  all  requirements 
have  been  fully  met. 

Some  of  the  territories,  unwilling  to  await  the  slower 
action  of  congress,  have  endeavored  to  hasten  the  process 
by  preparing  constitutions  on  their  own  responsibility  and 
demanding  from  congress  as  their  right,  recognition  as 
states.1  Such  rights  in  general  have  been  based  on  the 
wording  of  the  Ordinance  of  1787,  or  the  constitution  itself, 
or  on  some  treaty  provision  in  the  case  of  lands  ceded  by 
France,  Spain  and  Mexico.  Whatever  basis  in  right  any 
particular  territory  might  have  had,  congress  admittedly 
has  full  discretionary  powers  and  legally  need  admit  no 
territory  as  a  state  except  when  and  how  it  wills.  In  the 
case  of  some  of  these  territories  congress  has  good-naturedly 
admitted  them  on  request,  when  accompanied  by  a  proper 
constitution,  but  in  other  cases  conflicting  interests  or 
reasons  of  policy  dictated  a  refusal  and  compelled  delay.2 

FIVE  PERIODS  OF  DEVELOPMENT 

In  concluding  these  explanations  preliminary  to  the  study 
of  the  growth  of  state  constitutions  from  1776,  it  may  be 
said  that  there  are  five  natural  periods  of  constitutional 
development,  each  of  which  will  now  briefly  be  described 
and  then  elaborated  more  in  detail  in  later  chapters. 

(i)  In  the  first  or  revolutionary  period,  ending  with  the 
election  of  Jefferson  in  1800,  the  thirteen  colonies  declared 

1  For  example :  Tennessee,  Arkansas,  Michigan,  Florida,  Iowa,  Wiscon- 
sin, California,  Oregon,  Kansas,  Nevada,  Nebraska,  Colorado. 

2  Typical  illustrations  of  the  details  of  such  actions  may  be  found  sum- 
marized in  Jameson's  Constitutional  Conventions,  pp.  175-208. 


ADMISSION  OF   STATES  21 

their  independence,  began  to  practice  the  art  of  government 
unhampered  by  an  English  colonial  policy,  sought  to  develop 
a  spirit  of  cooperation  in  war  and  diplomacy,  and  experi- 
mented in  the  making  of  state  and  national  constitutions. 
To  the  original  states  three  others  were  added  in  accordance 
with  the  provisions  of  the  national  constitution.  (2)  The 
period  from  1801  to  1830  was  in  general  characterized  by  a 
slow  growth  in  nationality.  The  Louisiana  Purchase  from 
France  and  the  Florida  accessions  from  Spain  permitted 
an  expansion  of  population  into  national  territory  as 
against  state  growth ;  the  war  of  181 2  helped  to  fix  the  place 
of  the  nation  among  other  nations,  though  at  a  heavy  cost ; 
the  freedom  of  economic  intercourse  irrespective  of  state 
lines,  and  the  rapid  expansion  of  manufactures  in  the  north 
and  of  the  production  of  cotton  in  the  south,  helped  to 
smooth  out  petty  differences  by  a  general  prosperity; 
and  the  decisions  of  the  supreme  court  under  John  Marshall 
were  steadily  recording  the  growth  of  a  national  unity  soon 
to  be  eloquently  voiced  by  Daniel  Webster  in  his  famous 
debate  with  Hayne.  During  this  period  the  last  of  the 
eastern  states,  Maine,  and  seven  others  west  and  south 
were  added  to  the  Union. 

(3)  The  third  period,  from  1831  to  1860,  was  one  of  much 
constitutional  turmoil.  The  wave  of  Jacksonian  democracy 
had  reached  its  height;  the  glorification  of  American  in- 
stitutions had  begun,  as  illustrated  by  De  Tocqueville's 
Democracy  in  America 1 ;  and  the  war  with  Mexico  and 
the  Oregon  controversy  with  England  had  resulted  in  the 
rounding  out  of  the  national  domains  on  the  Gulf  and 
on  the  Pacific.  On  the  other  hand  sectional  discord  and 
racial  dissension  had  become  burning  questions,  through 
slavery  and  an  influx  of  immigration  largely  made  up  of 

1  Issued  1835.   See,  also,  Jacksonian  Democracy,  by  William  MacDonald. 


22  AMERICAN   STATE   CONSTITUTIONS 

those  "  alien  to  our  national  institutions."  During  this 
period  ten  new  states  south  and  west  were  admitted  to 
the  Union  after  much  controversy  and  compromise. 
(4)  The  fourth  period,  from  1861  to  1885,  the  beginning  of 
Cleveland's  administration,  is  dominated  by  the  consti- 
tutional changes  involved  in  the  secession  and  reconstruc- 
tion of  eleven  southern  states.  West  Virginia  and  three 
states  of  the  middle  west  were  added  to  the  Union,  and 
Alaska  acquired  by  purchase. 

(5)  The  last  period,  from  1886  to  -1914,  is  distinguished 
by  a  national  expansion  in  area  and  prestige.  The  national 
domains  were  broadened  by  the  acquisition  of  possessions 
in  the  West  Indies  (Porto  Rico),  the  Pacific  (Hawaii  and  the 
Philippines),  and  of  rights  over  the  Panama  Canal  Zone. 
Within  the  Union  may  be  noted  several  well-marked 
features :  (a)  Ten  new  states  have  been  added  to  the 
Union,  created  from  the  agricultural  and  mining  lands  of 
the  west,  and  completing  the  statehood  of  all  territorial 
lands  held  by  the  United  States  before  1860.  (b)  The 
rapid  economic  expansion  of  the  United  States  since  the 
civil  war  finds  its  expression  in  the  state  constitutions  in 
new  and  enlarged  articles  in  regulation  of  corporations, 
trusts,  and  industrial  conditions,  (c)  The  question'  of 
suffrage  becomes  prominent,  finding  its  chief  expression 
in  the  suppression  of  the  negro  vote  in  the  south,  the  ex- 
tension of  women's  suffrage  in  the  west,  and  in  the  limita- 
tion of  suffrage  through  systems  of  registration  and  educa- 
tional qualifications,  (d)  A  wave  of  radicalism  voicing 
itself  in  the  nineties  through  the  populistic  movement  and 
the  free  silver  agitation,  has  in  this  century  taken  the  form 
of  a  denunciation  of  governmental  incompetence,  and  a 
demand  for  administrative  and  legislative  reorganization, 
through  the  introduction  of  a  more  direct  participation  of 


ADMISSION  OF  STATES  23 

the  electorates  in  government,  through  such  devices  as 
the  initiative,  the  referendum  and  the  recall.  At  the  close 
of  this  period  problems  of  state  government  are  definitely 
to  the  front,  and  indications  point  to  a  more  constructive 
attitude  towards  state  constitutions. 

The  constitutional  and  governmental  developments  and 
changes  of  each  of  these  periods  will  now  be  taken  up  in 
order. 


CHAPTER  III 
THE  FIRST  STATE   CONSTITUTIONS 

IN  this  period,  from  1776  to  1800,  the  original  colonies 
became  independent  states,  organized  their  governments, 
experimented  with  a  weak  national  confederation,  and 
finally,  somewhat  'unwillingly,  united  into  a  federal 
Union.  Excellent  accounts  already  exist  showing  how  the 
constitutions  of  the  several  states1  and  of  the  federal  govern- 
ment came  into  existence.  In  general  it  may  be  said  that 
these  in  their  provisions  shunned  radical  experiments  and 
embodied  into  brief  articles  the  familiar  features  of  English 
and  colonial  experience.  The  theater  of  events  was  from  a 
world  standpoint  relatively  insignificant,  since  those  trans- 
actions took  place  in  a  then  remote  corner  of  the  earth, 
in  a  backwoods  civilization,  among  a  population  numbering 
scarcely  three  millions  of  people.  Yet  these  experimenta- 
tions in  the  application  of  the  principles  of  democracy 
under  written  constitutions  and  a  federation  have  become 
world- wide  in  their  influence  and  have  made  permanent  and 
fundamental  contributions  to  the  politics  and  political 
theory  of  civilization. 

THE  EARLY  CONSTITUTIONS 

In  the  first  place  it  may  be  noted  that  the  written  consti- 
tution had  become  accepted  as  the  proper  means  through 

1  Note  especially  articles  in  Annals  by  William  C.  Morey,  First  State 
Constitutions,  Vol.  IV.  2.  September,  1893 ;  and  by  William  C.  Webster, 
State  Constitutions  of  the  American  Revolution,  Vol.  IX.  3.  May,  1897. 
Also,  Dodd's  Revision  and  Amendment  of  State  Constitutions,  chap.  i. 

24 


FIRST  STATE  CONSTITUTIONS  25 

which  a  fundamental  law  should  be  formulated.  The 
confederation  of  1776  was  under  an  unwritten  constitution 
up  to  1781,  when  the  last  state  ratified  the  written  constitu- 
tion submitted  in  1777,  although  the  governmental  organiza- 
tion actually  employed  by  the  confederation  was  in  fact 
that  set  forth  in  the  proposed  constitution.  Almost  from 
the  beginning  written  constitutions  were  adopted  by  all 
the  states,  except  Connecticut  and  Rhode  Island;  these 
used  their  written  charters  as  constitutions,  substituting  the 
authority  of  the  people  for  the  authority  of  the  king,  and 
retaining  them  as  fundamental  law  until  formal  constitu- 
tions were  adopted  in  conventions  held  in  the  years  1818 
and  1842  respectively. 

In  the  formulation  of  the  several  state  constitutions  of 
this  period  it  may  be  noted  that  there  was  a  sort  of  uni- 
formity in  procedure,  though  wide  variations  in  detail. 
During  the  interim  between  colonial  government  and  in- 
dependent statehood,  there  was  formed  whenever  neces- 
sary in  any  colony,  a  unicameral  congress  or  revolutionary 
convention,  acting  through  executive  committees  authorized 
to  remain  in  session  after  the  adjournment  of  the  congresses 
or  conventions.  As  the  necessity  for  more  stable  forms  of 
government  became  evident,  and  the  possibility  of  inde- 
pendence more  immediate,  the  continental  congress  on  a 
request  for  advice  from  certain  colonies,  suggested  in  June, 
1775,  again  in  November  of  the  same  year,  and  finally  on 
May  fifteenth,  1776,  that  each  colony  summon  a  body  of 
representatives  to  form  a  more  permanent  government^ 
Acting  on  this  advice  the  several  colonies  proceeded 
to  organize  frameworks  of  government,  each  using  its 
discretion  as  to  the  methods  employed^  The  colonies 
had  few  precedents  by  which  to  guide  themselves  outside 
of  their  own  revolutionary  conventions,  or  the  English 


26  AMERICAN  STATE  CONSTITUTIONS 

conventions  of  1660  and  1689,  and  the  Lockean  notion  of 
a  social  compact  made  by  an  assembly  of  the  people.  Yet 
there  was  an  urgent  necessity  for  some  immediate  action, 
coupled  with  the  thought  that  nothing  really  permanent 
needed  to  be  formulated,  since  reconciliation  with  England 
was  a  likely  possibility.  The  earlier  action,  therefore, 
taken  by  the  colonies  was  rather  temporary  in  nature  and 
in  most  cases  was  soon  followed  by  a  more  carefully  pre- 
pared organization,  when  independence  seemed  assured 
and  experience  taught  the  necessity  of  a  thoughtfully  pre- 
pared framework  of  government,  based  on  republican  prin- 
ciples. For  this  reason  it  may  be  well  to  explain  briefly  the 
methods  adopted  in  each  of  the  states  during  this  revolu- 
tionary period,  since  these  became  the  basis  from  which  de- 
veloped the  constitutional  system  of  the  nineteenth  century. 
(i)  Massachusetts,  1775-6,  summoned  delegates  from  the 
towns  and  reorganized  its  government  substantially  in 
accord  with  the  provisions  of  its  former  charter.  This 
was  considered  to  be  a  provisional  arrangement  and,  after 
some  delay  the  general  assembly  sat  as  a  convention,  1777-8, 
and  prepared  a  constitution,  which  was  referred  to  the  town^ 
meetings  but  rejected  by  a  heavy  majority.  In  the  follow- 
ing year  the  voters  on  referendum  demanded  a  constitu- 
tional convention,  to  be  made  up  of  delegates  chosen  for 
that  purpose  only.  This  convention  met,  September  first, 
1779,  and  on  the  following  March  second,  recommended  to 
the  voters  a  bill  of  rights  and  a  constitution.  These  were 
approved  at  the  polls  by  more  than  a  two-thirds  vote  and 
the  convention,  reassembling  in  June,  announced  the  result 
and  set  a  date  when  the  new  constitution  should  go  into 
effect.  By  constitution  a  referendum  was  required  in  1795 
on  the  calling  of  another  convention.  The  convention, 
however,  was  not  demanded  until  1820, 


FIRST  STATE  CONSTITUTIONS  27 

(2)  In  New  Hampshire  the  provincial  congress  in  Novem- 
ber, 1775,  provided  for  the  election  of  a  convention  which 
met  December  twenty-first  and  by  January  fifth,  1776,  had 
framed  a  brief  constitution.     This  was  at  once  put  into 
effect  without  referendum,  the  convention  continuing  to 
serve  as  a  legislature.     In  1778  a  special  convention  was 
elected,  which  prepared  a  constitution  and  submitted  it  to 
the  voters  in  the  town-meetings  of  1779,  who  promptly 
rejected  it  because  of  its  inadequate  provisions.     A  new 
convention  was  chosen  which  met  June,  1781,  and  after 
two  failures  succeeded  in  submitting  a  constitution  which 
met  with  approval  and  went  into  operation,  June  second, 
1784.     Another  convention  summoned  in  1791  revised  this 
constitution,  and  the  revision  meeting  with  approval  at 
the  polls  was  declared  to  be  in  operation,  September  fifth, 
1792,  by  the  convention,  which  reassembled  for  that  pur- 
pose.    This  constitution  proved  so   satisfactory  that  no 
further  change  was  made  in  it  for  the  next  fifty-eight  years, 

(3)  In  South  Carolina  the  revolutionary  convention  itself 
framed    and   promulgated    a    constitution,    March,   1776, 
without  a  referendum  or  the  use  of  a  specially  elected  con- 
vention.   This  proving  unsatisfactory,  the  legislature  of  1 7  7  7 
prepared  a  new -constitution,  which  was  printed  and  action 
deferred  until  the  following  year  when  it  was  put  into  effect 
without  referendum,  being  passed  as  an  act  of  the  assembly. 
Finally  the  assembly  in  1 790  on  its  own  authority  summoned 
a  constitutional  convention,  which  prepared  a  constitution 
and  put  it  into  effect  June  third,  1790,  without  the  use  of  a 
referendum ;   this  remained  as  the  fundamental  law  of  the 
state  down  to  the  secession  movement  of  1861. 

(4)  Delaware  through  its  assembly  summoned  a  constitu- 
tional convention,  which  on  election  met,  August  twenty- 
seventh,    1776,    and   adopted   a   constitution,    September 


28  AMERICAN  STATE   CONSTITUTIONS 

twenty-first,  which  went  into  effect  without  referendum. 
The  amending  clause  of  this  constitution  was  so  stringent 
that  no  changes  could  be  made ;  the  assembly  therefore, 
voicing  a  popular  demand,  on  its  own  authority  and  against 
the  express  provisions  of  the  constitution,  provided  in  1791 
for  the  election  of  a  constitutional  convention.  This  body 
met  in  June,  1792,  and  prepared  a  constitution  which  went 
into  effect  without  referendum  and  lasted  without  further 
revision  for  forty  years. 

(5)  In    Virginia   the   revolutionary   convention   elected 
April,  1776,  for  general  purposes,  met  on  May  sixth  as  a 
constitutional  convention  and  adopted,  June  twenty-ninth, 
a  constitution  without  referendum.     This  remained  as  the 
constitution  of  the  state  for  over  fifty  years. 

(6)  In  New  Jersey  a  new  revolutionary  congress  was 
elected,  May  fourth,  1776.     In  addition  to  its  general  duties 
this  body  also  formulated  a  constitution  for  the  state,  which, 
July  second,  without  referendum  became  the  fundamental 
law,  lasting  without  revision  for  nearly  seventy  years. 

(7)  In  Pennsylvania  a  revolutionary  convention  was  not 
organized  until  July,  1776.     Among  other  duties  it  prepared 
a  constitution  which  without  referendum  was  put  into  effect, 
September  twenty-eighth  of  the  same  year.     This  constitu- 
tion provided  that  every  seventh  year  a  council  of  censors1 
should  be  elected,  which  in  addition  to  other  tasks  should,  if 
deemed  advisable  by  a  two-thirds  vote,  summon  a  conven- 
tion to  amend  the  constitution.     This  council,  when  chosen 
in  1783,  failing  to  agree  adjourned  without  action,  Sep- 
tember twenty-fifth,  1784.     In  March,  1789,  the  general 
assembly  requested  the  voters  to  express  their  desire  at 
the  next  general  election  for  or  against  the  calling  of  a  con- 
stitutional convention.     The  vote  being  satisfactory,  the 

1  See,  Haines,  Judicial  Supremacy,  chap.  vi. 


FIRST   STATE   CONSTITUTIONS  29 

assembly,  disregarding  the  provisions  of  the  constitution, 
summoned  a  convention  for  November,  1789,  which  com- 
pleted a  constitution  by  February  twenty-sixth,  1790,  and, 
after  an  adjournment  so  as  to  secure  public  opinion,  but 
without  referendum,  again  met  August  ninth,  and  finally 
proclaimed  the  new  constitution,  September  second,  1790. 
This  document  endured  as  the  fundamental  law  for  nearly 
fifty  years. 

(8)  In   Maryland   the   revolutionary   congress   resolved 
July  third,   1776,   to  summon  a  convention.     This  body 
when  organized,  August  twelfth,  exercised  general  powers 
and  in  addition  made  a  constitution,  which  was  adopted, 
November  eighth,  and  went  into  effect  without  referendum, 
lasting  for  seventy-five  years  without  revision. 

(9)  In    North    Carolina    the    revolutionary    convention 
through  its  council  of  safety  .advised  the  election  of  a 
congress.     This  body  met  November  twelfth,   exercising 
general  powers  as  well  as  preparing  a  constitution,  which 
was  completed  December  eighteenth.     This  went  into  effect 
without  referendum,  lasting  without    revision  for   nearly 
sixty  years. 

(10)  In  Georgia  the  revolutionary  congress  reorganized 
itself  temporarily,  early  in  April,  1776,  and  in  July  ordered 
an  election  for  delegates  to  a  convention.     This  met  in 
October,  at  once  assumed  general  powers  and  began  the 
preparation  of  a  constitution.     This  was  completed  and 
ratified,  February  fifth,  1777,  but  without  referendum.     In 
1788  the  legislature  nominated  and  appointed  the  members 
of  a  convention  (or  commission)  summoned  to  meet  Novem- 
ber fourth,  who  adopted  a  constitution  on  the  twenty-fourth, 
but  referred  it  for  approval  to  a  convention  of  elected  dele- 
gates, who  met  January  fourth,  1789.     This  body  recom- 
mended certain  changes  so  that  the  whole  matter  was 


3o  AMERICAN  STATE  CONSTITUTIONS 

referred  to  a  third  convention,  which  met  May  fourth, 
made  selections  from  the  recommendations  submitted  to  it, 
and  passed  these  two  days  later  as  the  constitution  of  the 
state  without  referendum.  In  1795  another  convention 
met  and  May  sixteenth,  passed  certain  amendments  to 
the  constitution  which  went  into  effect  without  referendum. 
Again  in  1798  a  constitutional  convention  was  called  which 
after  a  short  session  passed  a  revised  constitution,  May 
thirtieth,  which  was  put  into  effect  without  referendum  and 
lasted  without  further  revision  for  almost  forty  years. 

(n)  In  New  York  the  revolutionary  congress  advised  the 
election  of  a  convention,  which  on  election  met  July  ninth, 
1776.  This  body  was  too  busily  engaged  in  the  exercise  of 
its  general  powers  to  spend  much  time  in  the  preparation 
of  a  constitution,  but  March  twelfth,  1777,  a  preliminary 
draft  was  presented  and  discussed  until  April  twentieth, 
when  a  constitution  was  adopted  but  without  referendum. 
No  further  change  was  made  in  it  until  1801. 

(12)  Vermont,  which  was  practically  a  fourteenth  colony 
in  the  Revolution,  proclaimed  itself  an  independent  state 
in  1777.  Its  revolutionary  convention  in  June  of  the  same 
year  appointed  a  committee  (or  commission)  to  draft  a 
constitution  and  summoned  a  constitutional  convention  to 
meet  July  second,  which  passed  on  the  recommendations 
of  the  committee.  The  convention  adjourned  July  eighth, 
having  adopted  and  put  the  constitution  into  operation, 
but  without  a  formal  referendum.  This  constitution  in  imi- 
tation of  that  of  Pennsylvania,1  provided  that  an  elected 
council  of  censors  be  summoned  every  seven  years,  au- 
thorized among  other  duties  to  recommend  amendments, 
if  such  seemed  necessary,  to  a  convention  which  it  was 

1  For  the  relationship  between  the  Vermont  and  Pennsylvania  constitu- 
tions see,  Thorpe's  Constitutions,  Vol.  VI.  pp.  3778-80. 


FIRST  STATE   CONSTITUTIONS  31 

empowered  to  call.  The  council  met  in  1785-6,  and  again 
in  I792,1  in  each  case  summoning  a  convention  to  pass  on 
proposed  amendments.  The  action  of  these  conventions 
was  favorable,  so  that  Vermont  had  its  constitution  revised 
in  1786  and  again  in  1793.  The  council  of  the  next  period 
(1799)  summoned  no  convention,  and  in  fact  the  constitution 
of  1793  remained  unchanged  for  the  next  thirty-five  years.2 

(13)  Kentucky  from  1784  to  1790  was  busily  engaged  in 
seeking  by  negotiation  to  separate  itself  from  Virginia  and 
to  be  admitted  as  a  state.     An  amicable  arrangement  was 
finally  made  with  Virginia,  July  twenty-sixth,  1790,  by  a 
Kentucky  convention  called  to  consider  the  matter,  and 
this  same  convention  provided  for  the  election  of  delegates 
to  a  constitutional  convention  summoned  for  April,  1792. 
This  body  completed  its  work  and  arranged  that  the  con- 
stitution go  into  effect  June  first,  1792,  without  referendum, 
since  the  national  congress  had  already  agreed  that  Ken- 
tucky be  admitted  as  a  state  on  that  day.     In  accordance 
with  Article  XI  of  this  constitution,  the  citizens  having 
voted  that  a  convention  be  called,  a  convention  was  held 
in  1799  which  revised  the  constitution  and  promulgated  the 
revision  without  referendum. 

(14)  The  territory  later  known  as  Tennessee  was  originally 
part  of  North  Carolina.     The  eastern  part,  even  as  early  as 
1772  under  the  name  of  Watauga  had  adopted  a  sort  of 
constitution  and  attempted  to  free  itself  from  its  mother 
colony.     Later,   in   1784-5,   as   the   " state   of   Franklin" 
(Frankland),    it    again    adopted    a    constitution.3     North 
Carolina  in  1790  ceded  her  claims  to  the  nation  and  the  en- 
tire ceded  district  including  " Cumberland"  was  organized 

1  Vermont  was  admitted  as  a  state  in  the  Union  in  1791. 

2  See,  Header's  The  Council  of  Censors. 

3  Ramsay's  History- of  Tennessee,  chaps,  ii.  and  iv. 


32  AMERICAN  STATE   CONSTITUTIONS 

into  a  territory.  The  inhabitants  weary  of  waiting  for 
statehood  took  matters  into  their  own  hands  and  through 
their  territorial  assembly  summoned  a  constitutional  con- 
vention. This  body  met  January  eleventh,  1 796,  completed 
the  constitution  February  sixth,  1796,  without  referendum, 
and  requested  admission  to  the  Union.  Congress  after 
some  hesitation  passed  the  act  required  and  Tennessee 
became  a  state  June  first,  1796.  No  further  revision  was 
made  in  this  constitution  for  nearly  forty  years. 

These  fourteen  states  with  the  two  charter  states  of 
Connecticut  and  Rhode  Island  make  up  the  number  within 
the  Union  at  the  close  of  the  eighteenth  century.  It  may 
be  noted  that  eight  of  these  were  using  as  fundamental  law 
constitutions  and  charters  made  before  1780  and  that  the 
other  eight  were  all  made  or  revised  after  the  formation  of 
the  Union  in  1789.  In  general  it  may  be  said  that  there 
was  not  much  difference  between  the  two  sets  of  fundamen- 
tal law,  though  in  the  latter  set  may  be  observed  a  steady 
trend  in  the  direction  of  more  democratic  control  of  the 
machinery  of  governmental  systems.  These  constitutions 
as  a  whole  will  now  be  considered  and  their  general  provi- 
sions summarized. 

CHIEF  PROVISIONS  OF  THESE  CONSTITUTIONS 

It  is  worth  noting  that  five 1  of  the  constitutions  contained 
no  express  provisions  providing  for  their  amendment. 
This  of  course  did  not  bar  changes,  since  it  was  assumed  that 
the  people  had  the  inherent  right  to  change  their  form  of 
government  through  their  elected  representatives  in 

1  New  York,  Virginia,  North  Carolina,  Pennsylvania  (1790),  New  Jersey. 
Also  the  early  constitutions  of  New  Hampshire  (1776),. and  South  Carolina 
(1776).  New  Jersey,  however,  assumed  the  right  of  the  assembly  to 
change  the  constitution,  by  expressly  forbidding  the  alteration  of  certain 
sections  (Section  XXIII). 


FIRST  STATE  CONSTITUTIONS  33 

legislature  or  convention.  This  right  was  apparently 
superior  even  to  set  methods  of  change  contained  in  the 
constitutions,  for  both  Delaware  and  Pennsylvania  (in 
1789)  calmly  disregarded  the  methods  of  change  laid  down 
in  their  constitutions  when  these  proved  unworkable. 
The  modern  distinction  between  amending  and  revising  was 
not  clearly  made  in  the  eighteenth  century,1  but  Delaware 
and  South  Carolina  had  each  a  special  procedure  for 
amendments  and  another  for  conventions. 

In  two  states2  changes  in  the  constitution  were  expressly 
authorized  through  the  assembly  only,  though  two  super- 
seded constitutions  had  had  the  same  method.3  The 
constitutions  of  Delaware  and  South  Carolina  provided  for 
amendment  indifferently  either  through  assembly  or  con- 
vention but  the  constitutions  of  Kentucky,  Tennessee, 
Massachusetts  and  New  Hampshire  through  convention 
only,  and  Vermont  through  the  joint  action  of  censors 
and  convention.  So  as  to  insure  the  possibility  of  amend- 
ment in  case  an  assembly  should  prove  to  be  unwilling  to 
make  changes,  a  definite  period  was  set  in  several  consti- 
tutions, such  as  the  seven-year  period  of  New  Hampshire 
and  the  seven-year  censorial  councils  of  Pennsylvania  and 
Vermont.4  Delaware  allowed  the  question  to  be  raised  at 
any  general  election.  On  the  other  hand  three  states 
authorized  their  assemblies  to  call  a  convention  at  dis- 
cretion5 and  three6  others  at  discretion  to  refer  the  question 

1  That  amendments  arise  in  the  legislature  and  revisions  be  made  by  a 
convention. 

2  Georgia  and  Maryland. 

3  Delaware  (1776),  South  Carolina  (1778). 

4  Kentucky  in  its  constitution  of  1792  ordered  a  referendum  in  1799  on 
the  calling  of  a  convention,  and  Massachusetts  in  its  constitution  of  1780 
ordered  a  similar  referendum  for  1795. 

5  Maryland,  South  Carolina  and  Georgia. 
0  Delaware,  Tennessee  and  Kentucky. 


34  AMERICAN  STATE  CONSTITUTIONS 

to  the  voters  for  decision.  The  referendum  however  on 
amendments  or  revisions  was  not  employed  except  in  New 
Hampshire  and  Massachusetts.  An  approximation  to  it 
was  found  in  those  states  where  a  convention,  after  com- 
pleting its  work,  adjourned  for  several  months  so  as  to 
secure  an  informal  public  opinion  before  final  ratification.1 

As  a  guaranty  against  too  hasty  changes,  the  passing  of 
amendments  required  in  some  cases  special  procedure : 
the  action  of  two  assemblies  was  required  by  four  states ; 2 
or  a  larger  fraction  than  a  majority  was  required,  preferably 
two-thirds.3  Massachusetts  and  Delaware  sought  to  secure 
the  representative  character  of  their  conventions  by  pro- 
viding for  their  composition ;  the  former  using  the  house 
as  the  basis  and  the  latter,  the  legislature. 

In  further  summarizing  these  several  methods  of  forming, 
adopting  and  amending  constitutions,  it  may  be  said  that 
in  a  time  of  revolution  the  easiest  and  quickest  way  is  pref- 
erable and  safeguards  develop  later  through  experience  and 
reflection.  Hence  in  the  exigency  of  the  first  few  years 
it  is  not  strange  that  the  revolutionary  convention  or  a 
hastily  summoned  legislature  should  exercise  arbitrary 
powers  and  prepare  and  promulgate  constitutions  on  their 
own  authority.  At  a  later  stage  the  assembly  on  its  own 
authority  may  summon  a  convention  for  the  one  purpose 

1  E.g.,  in  Pennsylvania  1790,  South  Carolina  1777. 

2  Delaware,    Maryland,    South    Carolina,    Georgia.     In    Delaware    the 
governor  had  to  concur  with  the  action  of  the  first  assembly. 

3  A  two-thirds  popular  vote  was  required  by  Massachusetts  and  New 
Hampshire  in  voting  on  amendments.     South  Carolina  and  Georgia  required 
a  two-thirds  vote  from  each  house  in  submitting  amendments;   Delaware 
required  a  two-thirds  in  the  first  and  three-fourths  in  the  second  assembly ; 
the  censors  in  Pennsylvania  and  Vermont  summoned  conventions  by  a  two- 
thirds  vote.     In  taking  a  popular  vote  as  to  whether  a  convention  should 
be  called,  Tennessee  demanded  a  majority  of  those  voting  for  representa- 
tives, and  Delaware  and  Kentucky  a  majority  of  those  citizens  qualified  to 
vote  for  representatives. 


FIRST   STATE  CONSTITUTIONS  35 

of  preparing  a  constitution,  or  voters  at  the  polls  may 
express  their  desire  that  a  convention  be  called,  or  an 
existing  constitution  may  specify  provisions  for  amend- 
ments and  conventions  under  certain  contingencies  and 
special  procedure.  The  change  from  a  convention  with 
autocratic  powers  to  a  convention  bound  by  law  to  refer 
its  work  to  the  voters  is  seen  in  the  procedure  of  New 
Hampshire  and  Massachusetts.1  Among  variations  in 
methods  of  amending  should  be. emphasized  the  censorial 
councils  of  Pennsylvania  and  Vermont,2  and  the  appointed 
conventions  (or  commissions)  authorized  to  prepare  con- 
stitutions for  submission  to  a  following  elected  convention, 
as  mentioned  on  pages  29,  30. 

So  far  as  other  provisions  of  the  fourteen  constitutions 
are  concerned  it  is  unnecessary  at  this  day  to  rehearse 
them  in  detail.  In  the  constitutions  by  the  end  of  the 
eighteenth  century  may  be  found  the  preamble,  the  ratifying 
clause,  the  schedule  made  up  of  provisions  for  the  period  of 
transition,  and  a  formal  bill  or  declaration  of  rights,  rights 
both  " natural"  and  customary.  Not  all  of  the  earliest 
constitutions  contained  bills  of  rights,  but  the  example  set 
by  such  states  as  Virginia,  Pennsylvania,  and  Massachusetts 
determined  the  trend  for  future  constitutions.  The  pro- 
visions of  these  famous  bills  may  be  traced  from  Magna 
Carta,  the  English  Declarations  of  the  seventeenth  century, 

1  When  a  convention  promulgates  a  constitution  on  its  own  authority, 
it  assumes  that  it  has  by  delegation  the  sovereign  powers  of  the  people  and 
hence  is  for  the  time  being  itself  the  sovereign,  voicing  the  people's  will. 
Under  the  Massachusetts  theory,  however,  the  convention  is  a  body  ap- 
pointed for  one  purpose  only,  works  under  instructions  of  constitution  or 
legislature,  and  must  submit  the  results  of  its  deliberations  to  the  electorate 
for  approval  or  rejection. 

2  These  councils  had  censorial  duties  as  well  as  the  discretionary  power 
of  submitting  amendments.     Pennsylvania  dropped  its  council  from  the 
constitution  of  1790  and  Vermont  in  1870. 


36  AMERICAN  STATE   CONSTITUTIONS 

and  the  colonial  Bills  of  Rights  in  1765  and  1774,  as  well  as 
the  Declaration  of  Independence.  Although  the  earliest 
constitutions  did  not  for  the  most  part  formally  provide  for 
the  separation  of  powers,  yet  the  states  emphasized  the  vir- 
tual independence  of  the  judiciary,  as  the  governmental 
agency  through  which  the  rights  of  men  and  of  citizens 
were  to  be  safeguarded. 

It  must  be  admitted,  however,  that  the  principle  of  re- 
ligious freedom  was  not  fully  established  in  the  constitu- 
tions, for  practically  all  of  them  discriminated  in  favor 
of  Christians  or  Protestants,  and  several  demanded  the 
acceptance  of  doctrinal  beliefs  for  officeholding  and  voting. 
Thus  in  Pennsylvania  the  constitution  of  1776  required 
each  member  of  the  assembly  to  subscribe  to  the  following 
declaration : 

"  I  do  believe  in  one  God,  the  creator  and  governor  of  the  uni- 
verse, the  rewarder  of  the  good  and  the  punisher  of  the  wicked. 
And  I  do  acknowledge  the  scriptures  of  the  Old  and  New  Testament 
to  be  given  by  divine  inspiration." 

Similarly,  the  constitution  of  South  Carolina,  1778,  states: 

"  The  qualification  of  electors  shall  be,  that  every  free  white  man, 
and  no  other  person,  who  acknowledges  the  being  of  a  God  and  be- 
lieves in  a  future  state  of  rewards  and  punishments  .  .  .  shall  be 
deemed  a  person  qualified  to  vote."  1 

The  governor,  who  had  in  general  been  the  representative 
of  the  king  in  the  colonies,  was  deprived  of  most  of  his  former 
powers,  made  elective  in  eight  states,  and  was  appointed  by 
the  legislature  in  the  remaining  six.  Seven  states  granted  a 
one-year  term  only,  three  allowed  three  years,  three  had  a 
two-year  term  and  one  (Kentucky)  gave  four  years.  The 

1  For  a  more  complete  statement  see,  Webster's  article  in  Annals,  May, 
1897,  pp.  87-9. 


FIRST  STATE  CONSTITUTIONS  37 

council  of  the  colonial  governor  had  split  into  two  bodies, 
an  executive  council  and  an  upper  legislative  house.  In 
the  earlier  eleven  constitutions  the  executive  council 
appeared  in  all  but  two  of  them  (New  York,  New  Jersey) ; 
its  members  were  either  elected  by  popular  vote  or  by  the 
legislature.  But  by  the  end  of  the  century  four  states l  had 
dropped  the  provision  from  their  revised  constitutions, 
and  only  one  of  the  three  new  states  (Vermont)  had  adopted 
it.  As  neither  Connecticut  nor  Rhode  Island  had  councils 
of  that  nature,  six  states  only 2  had  a  governor's  council  at 
the  beginning  of  the  nineteenth  century.  The  governor's 
veto  was  permitted  in  one  state  only  (Massachusetts)  in 
the"  earlier  constitutions,3  but  by  the  end  of  the  century 
four  other  states  had  adopted  the  governor's  veto4  and 
Vermont  had  granted  the  power  to  governor  and  council. 

In  the  colonies  the  legislature  had  been  bicameral  except 
in  Georgia_and  Pennsylvania.  These  in  their  first  consti- 
tutions continued  their  unicameral  organizations  but  in 
their  later  constitutions  of  1789,  1790  respectively,  changed 
to  the  bicameral  system.5  Vermont,  however,  entered  the 
Union  with  a  single  chambered  legislature  retaining  it  up 
to  the  year  1836.  The  colonial  governor's  council  in 
becoming  a  senate  became  elective,  and  its  members  were 
chosen  either  from  existing  or  artificial  districts,  representing 

1  Delaware,  Pennsylvania,  South  Carolina,  Georgia. 

2  Massachusetts,  New  Hampshire,  Vermont,  Maryland,  Virginia,  North 
Carolina.     The  constitution  of  Maine  (1820)  provided  for  a  governor's 
council.     On  the  other  hand  Vermont  in  1836  substituted  a  senate  for  its 
council;    Maryland  in  1837  and  Virginia  in  1850  dropped  their  councils; 
in  1868  the  council  in  North  Carolina  was  made  to  consist  of  members  ex 
officio,  instead  of  members  elected  by  the  legislature. 

3  In  New  York  the  governor  and  a  special  ex  officio  council  had  veto 
powers  over  legislation. 

4  New  Hampshire,  Georgia,  Kentucky,  Pennsylvania. 

5  See,  Johns  Hopkins  Studies,  Rise  and  Development  of  the  Bicameral 
System  in  America,  by  T.  F.  Moran,  Series  XIII. 


38  AMERICAN  STATE  CONSTITUTIONS 

either  population,  or  the  district  as  such.  The  member- 
ship of  the  senate,  which  in  general  was  supposed  to  rep- 
resent propertied  interests,  varied  from  nine  in  Delaware 
to  forty  in  Massachusetts.  Senators  were  elected  annually 
in  seven  of  the  states  including  the  " Assistants"  of  Con- 
necticut and  Rhode  Island.  Five  states  had  a  four-year 
term  and  three  states  respectively  had  terms  of  two,  three 
and  five  years.  Six  of  the  states  elected  their  senators  on. 
the  class  or  rotation  system.  Only  one  state  (Maryland) * 
used  an  indirect  form  of  election,  all  the  others  elected 
senators  by  direct  vote.  The  lower  house  was  continued 
practically  as  it  had  been  under  colonial  organization.  It 
aimed  to  represent  the  people  as  such  and  hence  member- 
ship was  roughly  apportioned  among  the  districts  according 
to  the  number  of  citizens,  or  tax-paying  inhabitants ,  who 
in  general  formed  the  electorates  in  their  several  states. 
Elections  were  annual  except  in  South  Carolina  and  Ten- 
nessee where  biennial  elections  were  held. 

The  judicial  system  also  in  general  remained  unchanged, 
except  that  judges  formerly  named  by  the  Crown  were 
either  chosen  by  the  legislature  or  by  the  governor  and 
council.  Judges  of  the  higher  courts  were  elected  by  the 
legislatures  in  six  states,2  appointed  by  the  governor  either 
with  or  without  the  aid  of  council  or  senate  in  six  states,3 
in  New  York  appointed  by  a  committee  of  four  sena- 
tors, and  in  Georgia  elected  by  the  voters  for  a  three-year 
term. 

1  In  the  assembly  of  Maryland  the  deputies  were  to  be  "the  most  wise, 
sensible  and  discreet"  of  the  people,  and  the  senators  to  be  "men  of  the 
most  wisdom,  experience  and  virtue." 

2  New  Jersey,  Virginia,   North   Carolina,   South   Carolina,   Tennessee, 
Vermont. 

8  By  the  governor,  Pennsylvania,  Delaware ;  by  the  governor  and 
senate,  Kentucky ;  by  governor  and  council,  New  Hampshire,  Massachu- 
setts, Maryland. 


FIRST  STATE  CONSTITUTIONS  39 

The  constitutions  themselves  were  terse  and  contained 
few  details.  The  earliest,  being  temporary,  were  short, 
but  they  lengthened  at  each  revision.  By  the  end  of  the 
century  the  shortest  constitution  (New  Jersey)  contained 
about  twenty-five  hundred  words,  and  the  longest  (Massa- 
chusetts) about  twelve  thousand. 

As  for  the  charters  of  Connecticut  (1662)  and  Rhode 
Island  (1663),  they  were  substantially  identical l  in  phrase- 
ology and  in  their  form  of  government.  Each  provided 
for  an  elected  governor,  deputy-governor,  and  body  of 
assistants,  forming  an  upper  house  of  a  general  assembly ; 
the  lower  house  was  made  up  of  delegates  from  the  several 
towns,  varying  in  number  with  population.  The  assembly 
had  general  powers  of  oversight  and  administration  under 
the  charter  and  annually  elected  the  judges  of  the  courts, 
itself  also  having  certain  judicial  functions.  The  usual 
rights  of  Englishmen  were  guarantied  and  in  Rhode  Island 
religious  liberty  also.  Elections  were  annual,  and  as  in  the 
other  states  a  property  or  taxpaying  qualification  was 
necessary  for  the  privilege  of  voting.  There  was  of  course 
no  provision  for  the  amending  of  the  charters,  so  that  when 
these  colonies  in  1776  became  states  the  general  assemblies 
were  the  repositories  of  the  powers  of  their  respective 
states  and  legally  autocratic. 

1  Verbis  mutatis  mutandis. 


CHAPTER  IV 

GROWTH   OF   STATE   CONSTITUTIONS   FOR   THIRTY 

YEARS 

* 

IN  the  second  period,  from  1801-30,  the  trend  of  con- 
stitutional development  can  best  be  indicated  by  noting 
(i)  the  changes  made  in  the  sixteen  older  constitutions, 
and  (2)  by  summarizing  the  chief  provisions  of  the  consti- 
tutions of  eight  new  states;  Maine  in  the  east,  Missouri, 
the  first  of  the  trans-Mississippi  states,  three1  from  the 
northwest  territory  and  three  in  the  south.2 

CHANGES  IN  THE  OLDER  CONSTITUTIONS 

Of  the  older  states  six  only  made  use  of  the  convention, 
the  remaining  ten  either  made  no  alterations  in  their  con- 
stitutions or  were  satisfied  with  such  changes  as  could  be 
accomplished  by  the  ordinary  processes  of  amendment. 
The  amendments  for  the  most  part  were  of  small  conse- 
quence but  the  changes  in  three  states  deserve  mention. 
Maryland  abolished  the  property  qualification  for  suffrage 
and  for  ofnceholding  and  reorganized  its  judicial  system  ; 
Georgia  also  reorganized  its  judicial  system  and  provided 
that  the  governor  be  elected  by  the  voters  instead  of  by 
the  assembly,  and  South  Carolina  in  1808  rearranged  its 
representation  in  the  house,  trying  the  experiment  of  basing 
one  half  the  representation  on  white  population  and  the 
other  half  on  the  proportion  of  "  taxes  raised  by  the 


1802,  Indiana  1816,  Illinois  1818. 
2  Louisiana  1812,  Mississippi  1817,  Alabama  1819. 
40 


GROWTH  OF   CONSTITUTIONS  41 

legislature  of  the  state."  The  population  basis  for  repre- 
sentation was  not  adopted  until  1868. 

The  significant  changes  or  attempts  at  change  made 
by  the  six  states  making  use  of  the  convention,  will  now 
be  specified  briefly : 

(i)  The  New  York  constitution  of  1777  had  made  no 
provision  for  its  amendment,  but  in  1801  the  state  legis- 
lature under  its  general  powers  summoned  an  elected  con- 
vention to  consider  certain  specified  parts  of  the  constitu- 
tion. The  body  met  October  thirteenth  and  adjourned 
two  weeks  later,  having  confined  itself  strictly  to  the  busi- 
ness set  for  it  by  the  legislature.  Its  chief  task  was  to 
reorganize  and  reapportion  the  membership  of  the  legis- 
lature, and  it  promulgated  its  five  amendments  without 
referendum.  In  1821  a  convention  was  again  summoned 
which  met  August  twenty-eighth,  and  after  revising  the 
entire  constitution  adjourned  November  tenth.  In  Febru- 
ary the  revised  constitution  was  submitted  to  the  voters 
on  referendum  and  adopted.  The  chief  changes  involved 
slight  alterations  in  the  apportionment  of  membership 
in  the  legislature,  whose  per  diem  incidentally  was  fixed 
at  three  dollars;  the  governor  was  given  the  veto  power, 
and  he  with  the  senate  was  authorized  to  appoint  judges. 
His  term  was  made  two  instead  of  three  years.  A  good 
behavior  tenure  was  set  for  the  justices,  with  retirement 
at  sixty  years.  Eight  sections  of  Article  VII  were  devoted 
to  guaranties  of  rights  and  a  special  article  set  forth  a 
method  of  amendment.  This  provided  for  the  action  of 
two  legislatures,  the  first  by  a  majority  and  the  second  by 
a  two-thirds  vote,  followed  by  a  referendum.  No  provision 
was  made  for  the  calling  of  a  convention.  In  1826  an 
amendment  was  passed  abolishing  the  property  qualifica- 
tion for  the  suffrage. 


42  AMERICAN  STATE   CONSTITUTIONS 

(2)  The  council  of  censors  in  Vermont  proposed  no  amend- 
ments in  1806  but  in  1813,  and  again  in  1821,  amend- 
ments were  referred  to  conventions,  which  however  rejected 
them  all.  Three  were  submitted  in  1828  but  one  only  was 
passed,  restricting  suffrage  to  native-born  Americans  or  to 
naturalized  citizens.  (3)  The  legislature  of  Connecticut  in 
1818,  under  its  general  powers,  summoned  a  convention, 
which  substituted  for  the  ancient  charter  of  the  state  a 
constitution  which  to  a  quite  large  extent  reproduced  the 
charter  organization  of  government.  The  constitution 
was  referred  to  the  freemen  of  the  towns,  adopted  October 
fifth,  and  proclaimed  by  the  governor  on  the  twelfth.  It 
contained  a  preamble,  a  declaration  of  rights  in  twenty-one 
sections,  and  provided  in  form  for  the  separation  of  powers. 
The  lower  house  remained  without  change,  the  upper 
house  as  a  senate  of  twelve  members  was  made  to  rep- 
resent census  population  and  elected  at  large.1  The  annual 
election  was  retained,  the  governor  given  the  veto  power, 
and  judges  were  to  be  elected  by  the  assembly,  holding 
office  during  good  behavior.  Provision  was  made  for 
amendments  through  the  action  of  two  assemblies  and  a 
referendum  to  the  voters.  (4)  In  Rhode  Island  agitation 
for  readjustment  of  representation  resulted  (1824)  in  the 
call  of  a  convention  by  the  legislature  under  its  general 
powers,  but  the  constitution  submitted  was  rejected  at  the 
polls.  (5)  In  Massachusetts  the  general  court  (the  legis- 
lature) under  its  general  powers  summoned  a  convention 
which  met  November  fifteenth,  1820,  to  January  ninth,  1821, 
and  submitted  nine  articles  of  amendment,  which  on  ref- 
erendum were  adopted  April  ninth  ,1821.  Of  these  Article  II 
asserted  the  authority  of  the  general  court  to  constitute  and 

1  In  1828  an  amendment  increased  the  membership  of  the  senate  and 
provided  for  election  by  districts. 


GROWTH  OF  CONSTITUTIONS  43 

to  regulate  municipal  governments  in  the  towns  at  discre- 
tion, and  Article  IX  provided  for  a  method  of  amendment 
through  the  action  of  two  successive  legislatures  and  a 
popular  referendum,  approving  by  a  majority  of  those 
voting  thereon.  (6)  The  Virginia  assembly  under  its 
general  powers  summoned  a  constitutional  convention  which 
met  October  fifth,  1829,  to  January  fourteenth,  1830,  and 
submitted  to  the  voters  a  revised  constitution  which  was 
approved  April,  1830.  The  chief  change  made  was  a  re- 
apportionment  of  representation  in  the  assembly.  The 
assembly  continued  to  elect  governor,  council  and  judges, 
but  the  governor  was  given  a  three-year  instead  of  a  one- 
year  term  and  the  council  was  reduced  to  a  body  of  three 
members  instead  of  eight. 

CONSTITUTIONS  OF  THE  NEW  STATES 

Maine,  among  the  new  states,  being  an  offshoot  of  Massa- 
chusetts, tended  to  follow  the  form  of  the  parent  constitu- 
tion to  some  extent,  but  in  its  fundamental  law  departed 
somewhat  from  the  conservative  New  England  type,  and 
inclined  to  the  democratic  radicalism  of  the  newer  western 
states.  The  convention  sat,  October  11-29,  X8i9,  and  its 
constitution  was  on  referendum  approved  December  sixth, 
and  the  state  admitted  into  the  Union  March  third,  1820. 
The  constitution  contained  a  preamble,  a  declaration  of 
rights  in  twenty-four  sections,  and  an  article  making  a  formal 
distribution  of  powers.  It  provided  for  a  bicameral  legis- 
lature, in  general  based  on  population,  but  with  provisions 
for  the  representation  of  the  towns  in  the  house.  The 
governor  was  given  the  veto  power,  the  appointment  of 
the  most  important  judicial  officers,  and  was  to  be  assisted 
by  a  council  of  seven,  elected  by  the  legislature.  Elec- 
tions were  annual  and  manhood  suffrage  without  property 


44  AMERICAN  STATE  CONSTITUTIONS 

qualifications  was  provided.  The  legislature  by  a  two- 
thirds  vote  might  submit  amendments  on  referendum, 
which  went  into  effect  if  indorsed  by  a  majority  of  those 
voting  thereon. 

The  seven  other  states  admitted  into  the  Union  from 
1801-30  plainly  represented  in  their  constitutions  a  com- 
mon type,  having  its  basis  in  the  Ordinance  of  1787,  and 
including  those  features  of  rights,  popular  representation, 
and  democracy  characteristic  of  the  great  middle  west  of 
that  period.  These  states  had  been  created  out  of  the 
national  domain  and  except  in  the  case  of  Ohio  followed  a 
procedure  set  by  congress  which  determined  the  precedents 
for  the  admission  of  territories  as  states.  It  included  the 
enabling  act  permitting  the  calling  of  a  convention,  and  it 
lay  down  conditions  which  were  to  be  embodied  in  an  ordi- 
nance, usually  in  the  form  of  an  " irrevocable  compact"1 
between  the  territory  and  the  congress.  Ohio  formed  a 
constitution  on  its  own  initiative  without  an  enabling  act 
but  the  other  six  states  were  admitted  under  conditions  or 
" compacts."  In  the  case  of  Missouri  also  it  was  further 
stipulated  that  the  state  should  not  be  admitted  until  the 
legislature  by  formal  vote  should  disown  a  possible  uncon- 
stitutional interpretation  of  the  fourth  clause  of  Article  III, 
Section  26,  a  slavery  provision.  The  legislature  assented 
to  this,  June  twenty-sixth,  and  the  state  was  proclaimed 
August  tenth,  1821. 

These  seven  constitutions  were  not  submitted  to  popular 
referendum  except  in  the  case  of  Mississippi.  A  later  prec- 
edent of  congressional  enabling  acts,  starting  with  the 
enabling  act  for  Minnesota  in  1857,  made  a  referendum 
obligatory.  The  length  of  the  constitutions  was  slightly 
increasing,  ranging  from  seven  thousand  to  eleven  thousand 

1  See,  P.  19. 


GROWTH  OF  CONSTITUTIONS  45 

words,  averaging  just  about  nine  thousand  words.  The 
additional  length  was  due  to  a  greater  elaboration  of  details 
and  the  insertion  of  new  subjects  of  regulation.  There 
were  many  provisions  fixing  compensation,  regulating  office- 
holding,  determining  legislative  procedure,  and  making 
provisions  for  education,  in  regulation  of  banks  and  slavery,1 
and  against  bribery.  A  lengthy  bill  of  rights,  varying 
from  twenty-two  to  thirty  sections,  was  inserted  in  each, 
except  in  the  case  of  Louisiana,  which  however  contained 
a  few  guaranties  under  General  Provisions.2  In  all  cases 
the  three  departments  were  in  form  separated.  The 
legislature  was  bicameral  and  in  general  each  house  was 
based  on  voting  population,  "free  white  males,"  or  in- 
habitants. Annual  elections  were  favored  in  four  states 
and  biennial  in  the  remaining  three.  The  senate  was 
divided  into  classes  with  two,  three  or  four  year  terms. 
The  governor  was  elected  by  popular  vote,  had  veto  powers,3 
except  in  Ohio,  and  held  office  for  varying  terms  of  two,  three 
or  four  years.  Judges  of  the  supreme  court  were  appointed 
by  the  assembly  in  four,  and  by  the  governor  and  senate 
in  three  states,  holding  office  for  terms  varying  from  seven 
years  to  a  life  tenure  during  good  behavior.  Suffrage  was 
manhood  (free  white)  except  in  three  states4  which  required 
payment  of  a  tax  to  either  state  or  county. 

Each  of  the  constitutions  provided  a  method  of  amend- 
ment, and  most  made  possible  the  calling  of  a  convention  for 
the  purpose  of  revision.  The  widely  variant  requirements 

1  See,  e.g.,  the  three  hundred- word  provision  of  Missouri;    Article  III, 
Sections  26-8. 

2  Louisiana  inserted  its  first  formal  bill  of  rights  in  the  constitution  of 
1868. 

3  In  Illinois  the  veto  power  was  exercised  by  the  governor  and  the  judges 
of  the  supreme  court. 

4  Ohio,  Louisiana,  Mississippi. 


46  AMERICAN  STATE   CONSTITUTIONS 

showed  the  lack  of  settled  practice  among  the  states. 
Missouri  made  amendments  through  the  action  of  two 
successive  assemblies  voting  by  two-thirds  vote,  without 
a  referendum ;  Alabama  referred  amendments  by  a  two- 
thirds  vote,  and  then  if  the  referendum  were  affirmative, 
required  a  further  ratification  by  the  next  assembly. 
Three  states1  by  a  two- thirds  vote  of  their  legislatures 
might  submit  a  referendum  asking  whether  or  not  a  con- 
vention should  be  called  to  revise  the  constitution ;  Indiana 
authorized  a  referendum  every  twelve  years  for  the  same 
purpose,  but  in  Louisiana  the  assembly  by  a  majority  vote 
was  required  to  submit  the  question  for  two  successive 
years.  The  referendum  when  submitted,  required  in  four 
states2  a  majority  of  those  voting  for  representatives, 
Louisiana  made  it  harder  by  demanding  a  majority  of  those 
entitled  to  vote  for  representatives,  and  Indiana  insisted 
on  a  majority  of  all  votes  cast  at  a  general  election.  Four 
states  also  provided  that  the  convention,  if  called,  should  be 
based  on  the  same  representation  as  was  had  in  their  re- 
spective assemblies. 

1  Ohio,  Illinois,  Mississippi. 

2  Ohio,  Illinois,  Mississippi,  Alabama. 


CHAPTER  V 
THE   PERIOD   OF  DEVELOPING  DEMOCRACY 

THIS  period,  1831-60,  is  the  high  water  mark  for  the 
making  of  constitutions  among  the  states.  By  the  year 
1830  there  were  twenty-four  states  in  the  Union,  and 
during  the  next  thirty  years  ten l  new  ones  formed  their  first 
constitutions,  two  of  them  so  unsatisfactorily  that  they  found 
it  necessary  to  revise  them  within  this  same  period.  Of  the 
twenty-four  older  states,  eighteen2  of  them  revised  their  con- 
stitutions through  conventions,  two3  of  these  even  making 

Arkansas,  1836;  Michigan,  1835,  1850;  Florida,  1845;  Texas,  1845; 
Iowa,  1846,  1857;  Wisconsin,  1848;  California,  1850;  Minnesota,  1858; 
Oregon,  1859;  Kansas,  1859. 

Iowa  had  tried  to  adopt  a  constitution  in  1844  but  the  convention's 
work  was  rejected.  Wisconsin  had  the  same  experience  in  1846.  The 
Kansas  troubles  had  given  birth  to  three  conventions  with  their  constitu- 
tions, (1855,  1857,  1858)  before  the  territory  succeeded  in  making  another 
constitution  acceptable  both  to  the  voters  and  to  the  congress.  Though  this 
constitution  was  made  in  1859,  the  state  itself  was  not  admitted  into  the  Union 
until  January  29,  1861,  after  the  withdrawal  of  southern  congressmen  had 
made  this  possible. 

2  Delaware,    1831    (1852);    Mississippi,    1832;    Georgia    (1833),    1839; 
Tennessee,  1834;    North   Carolina,  1835;    Vermont,  1835,  (1842),  1849, 
(1856);    Pennsylvania,   1837;    Rhode  Island,   1842;    New  Jersey,   1844; 
Louisiana,  1844,  1852;   New  York,  1846;   Illinois,  1847;   Kentucky,  1849; 
New  Hampshire,  Maryland,  Virginia,  Ohio,  Indiana,  all  in  1850. 

3  Louisiana  and  Vermont.     In  Vermont  it  will  be  remembered  that  ac- 
cording to  the  provisions  of  the  constitution,  boards  of  censors  met  at  seven 
year  intervals.     The  boards  of  1835,  1842,  1849  and  1856  in  each  case  sum- 
moned a  convention  for  the  year  following  to  consider  amendments  prepared 
by  the  board.     No  amendments  were  adopted  by  the  conventions  of  1843 
and  1857  but  the  convention  of  1836  adopted  twelve,  and  that  of  1850  ten 
amendments. 

47 


48  AMERICAN  STATE   CONSTITUTIONS 

two  revisions.  Georgia  had  a  revision  rejected  in  1833 
but  was  more  successful  in  1839.  Delaware  revised  in  1831 
but  a  second  attempt  in  1852  met  with  defeat  at  the  polls. 
Yet  the  eighteen  states  can  hardly  be  accused  of  undue 
haste  in  revision.  The  average  age  of  their  constitutions 
was  forty-one  years,  six  were  over  fifty  years  old,1  and, 
aside  from  Vermont,  the  constitution  of  Mississippi  was 
the  only  one  less  than  twenty  years  old.  The  constitution 
of  Maryland  had  lasted  for  seventy-four  years  at  the  time 
of  its  revision.2  Some  of  these  revised  constitutions 
had  been  amended  by  separate  amendments  before  re- 
vision but  these  were  few  in  number  and  comparatively 
unimportant.  All  constitutions  of  this  period,  whether 
new  or  revised,  were  regularly  referred  to  the  voters  for 
approval  or  rejection.3 

Of  the  six  states  that  preferred  amending  to  revising,4 
Maine  adopted  nine  amendments,  Massachusetts  sixteen, 
Connecticut  eight,  Missouri  seven,  Alabama  three  and 
South  Carolina  two.5  Some  of  these  were  really  important 
and  the  set  as  a  whole  was  regularly  democratic  in  tendency. 
Of  the  eighteen  states  calling  conventions,  eight 6  summoned 

1  Rhode  Island,  North  Carolina,  New  Jersey,  Kentucky,  Maryland,  New 
Hampshire. 

2  In  1837  however  owing  to  popular  agitation  it  had  made  extensive 
amendments,  totaling  nearly  four  thousand  words  in  length.     The  procedure 
set  by  the  constitution  was  not  strictly  followed  in  calling  the  convention, 
and  the  same  is  true  of  the  conventions  of  1864  and  1867. 

3  The  exceptions  were,  Delaware,  Arkansas  and  Mississippi,  and  remem- 
bering that  in  Vermont  the  referendum  was  from  the  board  of  censors  to  a 
convention. 

4  Yet  two  of  these  had  endeavored  to  revise  their  constitutions  through 
conventions,  but  the  revised  constitutions  had  been  rejected  at  the  polls; 
Missouri,  through  its  convention  of  1845-6,  and  Massachusetts  in  1853. 

6  The  amendment  of  1834  emphasized  allegiance  to  the  state  in  the  oath 
to  be  taken  by  officials,  an  echo  of  the  nullification  agitation. 

6  Vermont,  New  Hampshire,  Delaware,  Tennessee,  Kentucky,  Mississippi, 
Ohio,  Illinois. 


DEVELOPING  DEMOCRACY  49 

them  in  accordance  with  provisions  in  their  constitutions. 
In  nine 1  others  the  legislatures  called  them  under  their  gen- 
eral legislative  powers.2  Louisiana  in  1844  called  a  conven- 
tion in  accord  with  its  constitution  but  as  the  revised 
constitution,  which  was  adopted,  contained  no  provision 
for  a  convention,  the  convention  of  1852  was  called  under 
the  general  powers  of  the  assembly. 

In  respect  to  the  nine  states  using  their  general  legisla- 
tive powers  it  may  be  noted  that  Maryland's  convention 
of  1850,  and  Georgia's  of  1833,  1839,  were  not  only  called 
under  the  general  powers  of  their  assemblies  but  in  direct 
opposition  to  the  provisions  of  their  constitutions,  which 
expressly  required  all  changes  to  be  made  through  assembly 
action  only.  In  Maryland 3  a  condition  of  discord  similar 
to  that  of  Rhode  Island  ten  years  before  had  arisen,  which 
the  assembly  settled  by  calling  a  convention  after  a  referen- 
dum to  the  voters.  The  situation  in  Rhode  Island  may  be 
briefly  mentioned  as  an  excellent  illustration  of  democratic 
struggles  against  adverse  conditions.  This  state,  it  will  be 
remembered,  had  retained,  with  verbal  changes,  its  old 
colonial  charter  as  its  fundamental  law.  Many  of  its  pro- 
visions, especially  in  respect  to  suffrage  and  representation, 
had  become  antiquated,  more  especially  through  the  rise  of 
a  commercial  manufacturing  population,  which  demanded 
political  rights  from  the  landholders  in  whom  political 
power  was  vested  by  charter.  A  convention  was  sum- 
moned in  1834  by  the  assembly  under  its  general  powers, 
but  it  adjourned  without  definite  action.  In  1841  the 

1  Rhode  Island,  Pennsylvania,  Virginia,  North  Carolina,  Indiana,  New 
Jersey,  New  York,  Georgia,  Maryland.     To  this  list  should  be  added  Massa- 
chusetts and  Missouri  already  mentioned  in  note  4  on  preceding  page. 

2  For  a  discussion  of  such  general  powers  see,  Jameson,  pp.  601-15  and 
Appendix  E. 

3  See,  Jameson,  Sections  224-5. 


50  AMERICAN  STATE   CONSTITUTIONS 

assembly  summoned  another  convention  which  submitted 
a  constitution  to  the  legal  voters,  who  promptly  rejected  it. 
Meanwhile  in  the  summer  of  1841  mass  meetings  were 
organized  which  summoned  a  constitutional  convention. 
The  constitution  of  this  convention  was  submitted  to  the 
male  adults  of  the  state  in  December  and  declared  adopted 
January  thirteenth,  1842.  The  attempt  to  organize  this 
popular  government  resulted  in  the  Dorr  Rebellion,  which 
was  promptly  suppressed.  In  view  of  the  tense  situation 
the  assembly  summoned  for  September  another  convention 
whose  constitution  was  ratified  in  November  and  went  into 
effect  May,  •  1843.  This  constitution  for  the  most  part 
merely  continued  the  fundamentals  of  the  old  charter  but 
made  some  concessions  in  respect  to  suffrage  and  repre- 
sentation. An  excellent  bill  of  rights  was  added,  the  de- 
partments were  separated  in  form  if  not  in  fact,  and  pro- 
vision made  for  the  passage  of  amendments  but  by  a  rather 
difficult  process. 

In  respect  to  the  ten  new  states,  only  one  of  them, 
(Minnesota),  entered  the  Union  by  the  ordinary  procedure, 
viz.,  through  an  enabling  act.  Texas  entered  the  Union 
by  annexation,  through  a  joint  resolution  of  congress  and 
mutual  formal  consent.  In  the  remaining  eight  territories, 
the  inhabitants,  in  their  eagerness  for  statehood,  called 
conventions  on  their  own  account  and  then  petitioned  con- 
gress for  admission.1  Congress  complied  in  each  case  but 
insisted  on  an  "irrevocable  compact"  ordinance  or  condi- 
tions tantamount  thereto,  except  from  Texas,  whose 
status  was  that  of  a  sovereign  state,  not  of  a  dependent 
territory. 

1  But  in  the  case  of  Wisconsin,  this  applies  only  to  the  constitution  of 
1848,  the  rejected  constitution  of  1846  was  in  harmony  with  an  enabling  act 
of  congress. 


DEVELOPING  DEMOCRACY  51 

By  the  admission  of  Florida,  Michigan  and  Wisconsin, 
all  of  the  national  territory  east  of  the  Mississippi,  except 
the  District  of  Columbia,  had  assumed  statehood.  The 
entrance  into  the  Union  of  Minnesota,  Iowa  and  Arkansas 
had  completed  the  first  tier  of  states  across  the  Mississippi, 
and  the  admission  of  Texas  had  rounded  out  the  Gulf 
states.  California  and  Oregon  fronted  on  the  Pacific  coast, 
looking  westward  towards  the  Far  East ;  and  Kansas  was 
the  first  of  fourteen  states  destined  to  be  formed  from  the 
farming  and  mining  lands  of  the  great  west.  It  was  the 
era  of  western  expansion,  of  boundless  faith  in  "  manifest 
destiny"  and  democratic  principles,  shadowed  only  by 
an  " impending  crisis"  due  to  the  existence  of  slavery  in 
the  south. 

It  would  be  tedious  and  is  unnecessary  to  enumerate  in 
any  detail  the  substance  of  these  new  and  revised  consti- 
tutions and  the  amendments  of  those  not  revised  in  con- 
vention. The  mass  of  detail  would  prove  confusing  and 
the  advantages  gained  from  it  if  set  forth  are  not  obvious. 
Then,  too,  it  was  a  period  when  the  processes  of  assimilation 
and  conscious  selection  were  prominent,  not  differentiation 
except  in  incidentals,  so  that  resemblances  rather  than 
differences  need  to  be  emphasized.  Throughout  this  period 
about  fifty  constitutional  conventions  had  been  held  in  the 
land,  from  the  Atlantic  to  the  Pacific  and  from  the  Gulf  to 
the  Canadian  border.  Interest  in  state  constitutions  had 
been  aroused  and  debates  in  conventions  in  the  discussion 
of  constitutional  points  at  times  rivaled  the  writers  of 
the  Federalist  in  their  clear  enunciation  of  fundamental 
principles.1  The  railroad  and  the  telegraph  had  come  into 
use  as  well  as  improved  postal  facilities,  so  that  all  sections 
of  the  country  through  more  frequent  intercourse  had  begun 

1  Like,  for  instance,  the  debates  of  the  Massachusetts  convention  of  1853. 


52  AMERICAN  STATE   CONSTITUTIONS 

to  exchange  ideas,  to  move  towards  common  fundamentals 
in  governmental  organization,  and  towards  a  sort  of  type 
or  standard  for  a  state  constitution.  This  was  not  modeled 
after  those  of  New  England  or  the  older  constitutions  of 
the  eighteenth  century,  but  found  its  best  patterns  in  the 
states  of  the  Mississippi  valley,  where  more  democratic 
conditions  were  supposed  to  exist.  The  older  states  of 
course  revised  conservatively,  and  the  south  in  its  consti- 
tutions had  to  keep  in  mind  "its  peculiar  institution" 
(slavery) ;  sectional  interests  caused  a  varied  emphasis  on 
such  subjects,  for  instance,  as  corporations,  finance,  and 
public  debts  in  the  north ;  or  land,  homesteads,  and  educa- 
tional systems  in  the  west.  Naturally,  the  trend  towards 
democracy  might  best  be  observed  in  the  constitutions  of 
the  ten  new  states,  unhampered  by  traditions  that  extended 
beyond  the  memory  of  living  men. 

THE  OLDER  CONSTITUTIONS 

The  twenty-four  older  states,  in  their  revisions,  had  of 
course  to  remember  their  past,  the  strong  prejudice  in 
favor  of  status  quo,  and  the  natural  indisposition  of  their 
citizens  to  try  the  seemingly  rash  experiments  demanded  by 
the  growth  in  democratic  conditions.  The  changes  effected 
therefore  in  these  older  constitutions  may  be  summarized 
as :  readjustments  in  the  memberships  of  legislatures, 
so  as  to  have  them  conform  more  closely  to  changes  in 
population;  property  qualifications  for  office-holding  and 
for  suffrage  for  the  most  part  disappeared,  and  two  states 
added  an  electional  qualification  for  suffrage ; 1  popular 
elections  for  administrative  and  judicial  officers,  especially 
in  the  case  of  local  officials,  sheriffs,  and  judges,  largely 

Connecticut,  1855;  Massachusetts,  1857. 


DEVELOPING  DEMOCRACY  53 

superseded  the  former  system  of  executive  appointment 
or  legislative  election.  Limitations  on  the  powers  of  leg- 
islatures became  prominent,  especially  in  finance  matters 
and  through  the  addition  of  articles  regulating  important 
interests.  The  governor's  office  definitely  became  elective, 
the  veto  power  bestowed  on  him  largely  added  to  his  pres- 
tige,1 and  two  states 2  dropped  from  their  constitutions  the 
old  fashioned  governor's  council.  The  well  known  demo- 
cratic fondness  for  justice  in  litigation  found  expression  in 
repeated  attempts  to  make  satisfactory,  unsatisfactory 
judicial  systems,3  and  in  numerous  changes  from  life  tenure 
judgeships  in  the  higher  courts  to  fixed  terms  and  popular 
elections.  Biennial  elections  and  to  a  less  extent  biennial 
sessions  succeeded  to  the  ancient  annual  election  and 
session;  a  plurality  requirement  for  election  superseded 
the  requirement  of  a  majority,  limitations  on  state  taxes 
and  debts  multiplied,  and  religious  restrictions  of  all  sorts 
began  to  drop  from  constitutions  and  to  be  followed  by 
prohibitions  of  the  use  of  public  moneys  for  sectarian 
purposes. 

THE  NEW  CONSTITUTIONS 

The  ten  new  constitutions  were  much  longer  when 
compared  with  the  constitutions  of  the  earlier  period. 
They  averaged  about  eleven  thousand  words  in  length, 
varying  from  nine  thousand  to  fourteen  thousand  words. 
This  increase  is  due  to  the  insertion  of  additional  articles 
on  subjects  ignored  in  the  earlier  constitutions.  The 
headings  Banks,  Corporations,  Local  Government  occupied 

1  The  item  veto  appears  first  in  the  Kansas  constitution  of  1859. 

2  Vermont,  Maryland. 

3  Maryland,  for  example,  devoted  nearly  five  thousand  words  to  its 
judicial  system,  in  addition  to  about  two  thousand  words  to  its  adminis- 
trative officials  and  departments. 


54  AMERICAN  STATE  CONSTITUTIONS 

more  space,  Education  concerned  itself  with  school  lands 
generously  bestowed  from  the  public  lands  of  the  Union, 
and  the  vexed  Judicial  Department  evidently  was  a  source 
of  anxiety.  Legislatures  were  no  longer  honored  bodies 
but  were  repressed  by  limitations  on  their  powers,  espe- 
cially in  respect  to  taxation  and  finance  and  the  passing 
of  local  and  private  legislation;  there  were  also  prohibi- 
tions against  the  incurring  of  public  debts  beyond  a  fixed 
maximum,  while  numerous  provisions  against  bribery 
seemed  to  cast  doubt  on  the  integrity  of  legislators  and 
administrative  officials. 

The  constitutions  had  a  combined  preamble  and  enacting 
clause,  and  bills  of  rights,  except  that  Michigan  scattered 
its  provisions  throughout  the  constitution  instead  of  collect- 
ing them  into  a  formal  bill.  Free  white  male  citizens  formed 
the  electorate,  except  that  four  states  allowed  aliens  to 
vote  who  had  declared  their  intention  of  becoming  citizens 
of  the  United  States.  Property  qualifications  did  not  exist, 
and  representation  in  the  legislatures,  with  minor  excep- 
tions, was  based  in  both  houses  on  census  population. 
There  was  a  decided  emphasis  in  favor  of  the  biennial 
election  and  legislation  session,  and  the  lengthening  of 
terms  of  administrative  officers.  In  each  state  the  governor 
was  elected  and  had  the  veto  power ;  administrative  officers 
and  judgeships  of  all  grades  were  almost  entirely  elective 
or  became  so  through  later  amendments. 

In  respect  to  amendment  and  revision  there  was  still 
wide  variation.  The  processes  of  change  were  simpler, 
more  democratic,  and  were  approximating  towards  the 
present  system.  But  there  were  still  differences ;  as  illus- 
trated, for  example,  by  the  variations  in  the  vote  required 
for  a  referendum  :  —  "  a  majority  of  those  voting  thereon," 
" a  majority  of  the  electors,"  "a  majority  of  those  qualified 


DEVELOPING  DEMOCRACY  55- 

to  vote,"  "a  majority  of  those  voting  at  an  [general]  elec- 
tion." Modern  experience  is  roundly  against  the  last 
three  of  these  requirements. 

A  comparison  of  these  two  sets,  the  new  and  the  revised 
constitutions,  shows  that  they  were  not  so  far  apart.  The 
real  difference  would  be  found  in  what  the  older  constitu- 
tions retained  without  change.  The  changes  they  actually 
made  were  in  quite  full  agreement  with  the  provisions  of 
the  newer  constitutions.  The  period  of  change  seemed  to 
reach  its  climax  in  1850  when  seven  constitutional  conven- 
tions met  in  as  many  different  states.  After  that  date 
questions  of  slavery  and  secession  began  to  absorb  the 
attention  of  the  states,  so  that  national  interests  came  to 
the  front  and  held  the  stage  for  over  forty  years.  The 
period  of  reconstruction  at  the  close  of  the  war,  aroused 
interest  in  the  constitutions  of  the  southern  states,  and  the 
many-sided  development  of  the  last  twenty-five  years  in  the 
United  States  has  once  again  given  an  impetus  towards 
the  study  of  all  state  constitutions. 


CHAPTER  VI 
SECESSION,   RECONSTRUCTION  AND   READJUSTMENT 

IN  this  period,  from  1861  to  1886,  occurred  the  civil  war 
and  the  period  of  reconstruction,  both  deeply  significant 
in  American  history  and  indirectly  of  great  importance  in 
the  development  of  state  constitutions.  The  influence 
exerted  by  these  events  on  constitution-making  can  best 
be  seen  after  an  explanation  of  the  changes  necessitated  by 
them  in  the  southern  states,  so  that  the  constitutional  modi- 
fications brought  about  by  secession  and  reconstruction 
will  now  be  set  forth.  This  will  be  done  in  detail  so  as  to 
make  clear  the  state  constitutional  history  of  the  period, 
presenting  it  from  the  standpoint  of  state  constitutions. 

The  twenty-five  years  of  this  fourth  period  present  three 
sets  of  constitutions  for  consideration : —  (i)  the  constitu- 
tions of  the  southern  states ;  (2)  the  efforts,  more  or  less 
successful,  of  eleven  other  states  to  revise  their  constitu- 
tions ;  and  (3)  the  constitutions  of  the  four  new  states 
admitted  into  the  Union.  The  first  set  will  be  explained 
under  two  headings ;  viz.,  Secession,  and  Reconstruction. 

I.    THE  STATE  CONSTITUTIONS  OF  THE  SOUTH 

Secession.  The  secession  movement  of  the  south,  with 
the  resultant  civil  war  and  the  inevitable  period  of  re- 
construction and  readjustment,  presents  one  of  the  most 
striking  chapters  in  state  constitution-making.  An  empire 
of  agricultural  states,  wealthy  and  populous,  dominated 

56 


SECESSION  AND   RECONSTRUCTION  57 

by  an  aristocratic  class  of  great  landowners,  found  itself 
rather  unexpectedly  plunged  into  a  fierce  war  lasting  nearly 
four  years.  From  this  it  at  last  emerged,  beaten,  decimated 
in  battle  and  poverty-stricken ;  no  longer  a  band  of  sover- 
eign states  or  equal  states  in  the  Union,  but  merely  a  series 
of  conquered  provinces.  In  its  humiliation  it  saw  its  former 
slaves  made  into  free  and  equal  citizens,  and  for  a  time  even 
superior  before  the  law.  Finally,  when  weighed  down  by 
the  sting  of  defeat  and  the  grief  of  bereavement,  it  was 
compelled  to  readjust  its  civilization,  its  institutions, 
and  its  ideals  to  the  newer  conditions  environing  it,  and  to 
work  out  new  systems  of  economic,  political  and  social 
standards,  suited  to  the  situation  thrust  upon  it.  Naturally 
such  readjustments  required  time  and  in  their  broadening 
ramifications  can  hardly  be  said  to  be  fully  accomplished 
even  yet,  though  fifty  years  have  elapsed  since  the  close  of 
the  war. 

The  history  of  this  period  has  been  quite  thoroughly 
covered  by  many  excellent  general  and  special  works 1  and 
is  doubtless  familiar  to  the  reader,  so  that  that  part  only 
demands  attention,  which  is  needed  in  explanation  of 
changes  in  the  constitutions  of  the  southern  states. 

As  is  well  known,  the  presidential  election  of  1860, 
which  resulted  in  the  choice  of  Abraham  Lincoln,  was  the 
turning  point  in  the  march  of  events.  The  legislature  of 
South  Carolina  which  was  in  session  when  the  results  of 
the  election  were  announced,  on  November  tenth  summoned 
a  convention  to  meet  December  seventeenth,  for  the  pur- 
pose of  considering  the  relations  of  the  commonwealth 
"with  the  Northern  States  and  the  Government  of  the 
United  States/'  On  December  twentieth,  this  convention 
unanimously  passed  an  ordinance  of  secession  and  soon 

1  See  references  at  end  of  chap.  vii. 


58  AMERICAN  STATE   CONSTITUTIONS 

afterwards  issued  a  "  Declaration  of  Causes,"  and  an  " Ad- 
dress to  the  People  of  South  Carolina  and  to  the  People 
of  the  Slave-holding  States,"  in  which  these  were  urged  to 
unite  in  forming  a  Southern  Confederacy.  This  method 
of  action  was  in  general  followed  by  the  other  seceding 
states.  By  the  first  of  February,  1861,  the  six 1  other  cotton 
producing  states  had  seceded,  conventions  being  sum- 
moned by  the  legislatures  for  this  purpose.  On  February 
fourth  delegates  from  six  of  the  states2  met  in  Montgomery, 
Alabama,  and  organized  a  temporary  government,  electing 
Jefferson  Davis  and  Alexander  H.  Stephens  respectively  as 
President  and  Vice  President,  under  the  terms  of  a  pro- 
visional constitution.  On  March  eleventh  a  permanent 
constitution  was  adopted  by  the  congress  and  was  ratified 
by  the  last  (Florida)  of  the  seven  state  conventions,  April 
twenty-second.  It  was  practically  the  national  constitu-\ 
tion  with  variations  in  favor  of  state  sovereignty,  slavery,  I 
and  against  a  tariff  for  protective  purposes.  On  April 
eleventh  Fort  Sumter  was  bombarded  and  war  had  begun. 
It  was  necessary  that  the  other  southern  states3  should 
make  their  decisions  at  once,  since  each  state  in  the  Union 
was  summoned  by  Lincoln  to  send  its  militia  to  aid  in  the 
suppression  of  the  rebellion.  Virginia  in  convention 
voted  to  secede,  April  seventeenth,  and  fixed  on  the  fourth 
Thursday  of  May  as  the  date  for  a  referendum.  This 
when  taken  was  strongly  affirmative  for  secession.  The 
convention  of  North  Carolina  in  its  first  session  had  re- 
fused to  pass  an  ordinance  of  secession,  but  May  first  the 

1  Mississippi,  Florida,  Alabama,  Georgia,  Louisiana,  Texas. 

2  Texas  sent  its  delegates  a  few  days  late,  as  it  was  awaiting  the  result 
of  a  referendum  (February  twenty-third)  on  secession. 

3  There  were  seven  other  states  fully  or  partly  in  sympathy  with  the 
South  :  Virginia,  North  Carolina,  Arkansas,  Tennessee,  Kentucky,  Missouri, 
Maryland. 


SECESSION  AND   RECONSTRUCTION  59 

legislature  summoned  for  the  twentieth  of  the  month  a  con- 
vention, which  promptly  on  assembling  voted  to  secede. 
The  legislature  of  Arkansas,  January  fifteenth,  summoned  a 
convention  which  met  March  eleventh  and  adjourned  on 
the  twenty-first  without  acting  on  the  question  of  secession. 
On  May  sixth  it  reassembled  and  at  once  passed  an  ordi- 
nance of  secession.  Tennessee  on  referendum  had  refused 
to  call  a  convention,  but  May  sixth-seventh,  the  legislature 
identified  the  state  with  the  fortunes  of  the  south  by 
seceding  and  ratifying  the  confederate  constitution.  This 
action  was  endorsed  on  referendum,  June  eighth.  The 
governor  of  Kentucky,  who  favored  secession,  summoned 
the  'legislature  of  the  state  to  meet  in  special  session,  May 
sixth.  This  body  refused  to  take  sides  and  sought  to  main- 
tain a  policy  of  neutrality.  In  August  a  new  election  was 
held,  resulting  in  a  strong  Union  legislature,  which  hence-  • 
forth  cooperated  with  the  north.  The  convention  of 
Missouri  meeting  February  twenty-eighth  had  even  in 
March  declared  strongly  against  secession.  When  war 
broke  out  the  question  again  became  an  issue  and  cul- 
minated, July  thirtieth,  when  the  convention  on  reassem- 
bling definitely  sided  with  the  north  by  deposing  Governor 
Jackson,  a  southern  sympathizer,  and  then  reorganized  the 
state  administration  so  as  to  favor  the  Union  cause.  Lastly, 
the  legislature  of  Maryland  refused  to  call  a  convention  or 
to  pass  an  ordinance  of  secession,  so  that  the  state  legally 
and  officially  remained  within  the  Union.  As  the  result 
therefore  of  the  secession  movement,  eleven  of  the  fourteen 
slave-holding  states  withdrew  from  the  Union,  becoming  \ 
members  of  the  Southern  Confederacy,  but  the  other  three,  J 
Kentucky,  Missouri  and  Maryland,  by  preference  threw/ 
in  their  lot  with  the  north. 

It  will  be  noted  that  in  the  secession  movement  a  special 


60  AMERICAN  STATE   CONSTITUTIONS 

convention  was  the  agency,  through  which  action  was 
taken.  When  secession  was  voted,  the  convention  then 
made  alterations  in  the  constitution  so  as  to  have  it  con- 
form to  the  new  order  of  things.  Still  further,  the  con- 
ventions in  most  cases  assumed  charge  of  government, 
passed  ordinances,  appropriated  moneys  from  the  state 
treasuries,  raised  troops,  secured  war  supplies,  and  served 
as  ratification  conventions  for  the  new  constitution  of  the 
confederacy.  Obviously  these  conventions  were  only  in-, 
cidentally  constitutional  conventions,  they  were  rather 
revolutionary  conventions  exercising  the  sovereign  powers 
of  their  states  in  a  time  of  crisis,  on  the  assumption  that  for 
the  time  at  least  they  were  voicing  the  wish  and  will 
of  their  respective  states. 

Reconstruction.  As  the  civil  war  approached  its  termina- 
tion, it  became  necessary  to  decide  on  the  method  whereby 
the  conquered  states  might  be  restored  to  their  former  place 
in  the  Union.  To  this  end,  three  policies  developed,  one 
after  the  other,  viz.,  the  policies  of  Presidents  Lincoln, 
Johnson,  and  of  congress,  (i)  Lincoln's  policy  was  voiced 
in  his  Amnesty  Proclamation  of  December  eighth,  1863, 
in  which  he  invited  the  citizens  of  ten  of  the  rebellious 
states  (excepting  Virginia1)  to  resume  their  allegiance  and 

1  Virginia  was  excepted  because  Lincoln's  policy  was  already  working  out 
in  that  state.  A  loyal  legislature,  purporting  to  be  the  legislature  of  Vir- 
ginia, had  already  given  sanction  to  the  separation  of  West  Virginia.  The 
remnant,  after  the  withdrawal  of  the  West  Virginia  delegates,  made  up  of 
delegates  from  that  small  part  of  the  present  Virginia  then  in  the  Union 
lines,  on  December  twenty- first,  1863,  summoned  a  convention  to  amend  the 
constitution.  This  convention  consisting  of  about  twenty  members,  met 
February  thirteenth,  1864,  and  on  April  seventh  adopted  a  constitution,  which 
was  submitted  to  the  voters  for  approval  or  rejection  and  in  June  endorsed  by 
a  total  vote  of  about  five  hundred.  This  constitution  of  1864  was  practically 
a  sort  of  provisional  constitution,  and  the  government  organized  under  it, 
the  "Pierpont  Government,"  met  with  some  recognition  from  the  executive 
department  of  the  national  government. 


SECESSION  AND   RECONSTRUCTION  61 

to  organize  loyal  governments  within  their  respective  states. 
The  proclamation,  furthermore,  suggested  the  methods 
that  should  be  followed,  in  order  to  construct  governments 
that  would  be  satisfactory  to  the  federal  government. 
Three  states  only  of  the  ten,  availed  themselves  of  this 
opportunity ;  Arkansas,  Louisiana  and  Tennessee. 

In  Arkansas  a  loyal  convention  claiming  to  represent 
twenty-two  out  of  the  fifty-four  counties  of  the  state,  met 
January  eighth,  1864,  at  Little  Rock,  and  later  in  the  month 
submitted  to  the  loyal  voters  a  constitution,  which,  March 
eighteenth,  was  almost  unanimously  ratified,  so  that  a 
government  under  its  provisions  was  organized  by  April 
eleventh.  In  Louisiana  at  the  suggestion  of  General  Banks 
then  in  command,  a  convention  met  at  New  Orleans  April 
sixth,  1864,  and  completed  by  August,  a  constitution, 
practically  that  of  1852  with  necessary  additions  and 
changes,  which  was  submitted  to  a  small  body  of  voters 
September  fifth  and  ratified.  In  accordance  with  the  pro- 
visions of  this  constitution  a  loyal  government  was  or- 
ganized. In  Tennessee,  Andrew  Johnson,  then  military 
governor,  urged  its  loyal  citizens  to  prepare  a  constitution. 
After  much  preliminary  discussion  a  convention  met  at 
Nashville  January  ninth,  1865,  which  added  to  the  consti- 
tution of  1834  an  amendment  abolishing  slavery  and  prop- 
erty rights  in  human  beings,  and  passed  a  schedule  repealing 
the  secession  legislation  and  providing  for  the  readjustment 
of  relations  with  the  Union.  These  were  submitted  to  the 
loyal  voters  of  the  state  on  February  twenty-second  and 
ratified  almost  unanimously. 

Congress,  however,  was  not  altogether  in  agreement  with 
the  president  as  to  the  methods  of  readmission.  It  refused 
to  receive  congressmen  from  the  four  reconstructed  states 
or  to  recognize  the  states  as  reconstructed.  President 


62  AMERICAN  STATE  CONSTITUTIONS 

Lincoln,  nevertheless,  continued  to  treat  with  them  as 
proper  governments,  though  inasmuch  as  they  were  practi- 
cally under  military  control  their  constitutions  can  hardly 
be  considered  as  really  and  legally  in  effect. 

(2)  On  April  fourteenth,  1865,  President  Lincoln  was 
assassinated,  dying  next  day,  and  Vice  President  Johnson 
became  president.  His  policy  of  reconstruction,  virtually 
an  extension  of  Lincoln's,  went  on  the  assumption  that 
the  executive  department  as  the  military  authority  had 
jurisdiction.  On  May  twenty-ninth  he  issued  a  procla- 
mation of  amnesty  and  began  reconstruction  by  appointing 
provisional  governors  for  the  seven  states  not  yet  recon- 
structed. These  governors  organized  temporary  govern- 
ments and  summoned  constitutional  conventions.  Each 
convention,  under  the  instructions  given  by  the  president, 
was  to  provide  for  a  new  state  government  based  on  the 
constitution  and  laws  as  they  were  in  1861,  but  without 
slavery ;  to  abolish  slavery,  to  ratify  the  thirteenth  amend- 
ment, to  repudiate  debts  in  aid  of  the  rebellion,  and  to 
declare  the  ordinance  of  secession  null  and  void.  Elections 
were  then  to  be  held  for  local,  state  and  congressional 
officers,  and  when  completed,  the  provisional  governments 
were  to  be  withdrawn  and  the  rebellious  states  restored  to 
their  former  relationship  within  the  Union. 

In  harmony  with  this  plan  conventions  were  held  in  the 
seven  states,  constitutions  adopted,  referred  in  three  cases1 
to  the  voters  and  ratified,  and  governments  organized. 
The  first  convention  met  August  fourteenth  in  Mississippi, 
and  in  order  followed  South  Carolina,  Alabama,  North 
Carolina,  Georgia,  Florida,  and  Texas,  whose  convention  ad- 
journed April  second,  1866.  A  referendum,  voting  affirma- 
tively, was  taken  in  Texas,  June  twenty-fifth,  so  that  by  that 

1  North  Carolina,  Georgia,  Texas. 


SECESSION  AND   RECONSTRUCTION  63 

date  the  eleven  states  had  apparently  been  reconstructed. 
The  president  in  his  message  to  congress,  December  fourth, 
and  December  eighteenth,  in  his  special  message  to  the 
senate,  called  attention  to  the  rapid  progress  of  reconstruc- 
tion and  expressed  the  hope  that  there  would  soon  be  es- 
tablished "a  harmonious  restoration  of  the  relations  of  the 
states  to  the  national  Union."  On  December  eighteenth 
also,  the  secretary  of  state  proclaimed  the  ratification  of 
the  thirteenth  amendment  by  the  consent  of  twenty-seven 
out  of  the  thirty-six  states,  the  interesting  point  being  that 
eight  of  the  twenty-seven  were  secession  states,  states  in 
the  Union  according  to  the  executive,  but  not  so  in  the  later 
opinion  of  the  congress.  For,  powerful  though  the  presi- 
dent is,  with  his  enormous  prestige  and  his  headship  of  the 
army  and  navy,  his  power,  after  all,  depends  on  the  willing- 
ness of  congress  to  cooperate  with  him  by  submitting  to  his 
leadership.  Should  congress  object  and  force  the  issue, 
neither  the  president,  nor  the  supreme  court,  singly  or 
combined,  can  resist  the  final  authority  that  comes  through 
the  possession  of  the  power  of  legislation.  Such  an  issue 
had  arisen  between  President  Johnson  and  the  congress, 
which  finally  definitely  rejected  his  policy  of  reconstruction 
and  itself  took  up  the  task. 

(3)  In  December,  1865,  it  appointed  a  joint  Committee 
on  Reconstruction  to  report  on  the  situation  and  its  several 
recommendations  formed  the  basis  for  later  action.  Mean- 
while it  refused  to  receive  into  either  house  members  from 
"any  of  the  said  so-called  confederate  states."  On  July 
twenty-fourth,  however,  an  exception  was  made  in  the 
case  of  Tennessee  and  that  state  was  readmitted,  but  with 
the  distinct  assertion  that  "said  state  government  can  only 
be  restored  to  its  former  political  relations  in  the  Union 
by  the  consent  of  the  lawmaking  power  of  the  United 


64  AMERICAN  STATE  CONSTITUTIONS 

States."  The  gist  of  the  congressional  objection  to  read- 
mission  lay  in  the  fact  that  the  reconstructed  states  were 
denying  rights  and  suffrage  to  the  enfranchised  blacks. 
This  meant  that  if  the  states  were  readmitted  into  the 
Union  negroes  would  be  permanently  subordinated  to  the 
whites,  and  furthermore,  that  the  southern  states,  since 
each  freed  person  henceforth  would  count  as  one  instead  of 
three-fifths  for  purposes  of  representation  in  the  house,1 
would  increase  their  proportion  of  representation  and  that 
this  would  be  controlled  by  the  democratic  white  citizens. 
As  a  legal  check  on  these  possibilities,  the  fourteenth  amend- 
ment was  passed  by  the  congress,  June  thirteenth,  and 
then  referred  to  the  states  for  approval  or  rejection.  As 
the  vote  of  the  southern  states  against  this  amendment 
would  surely  defeat  it,  it  was  doubly  important  that  they 
should  not  be  considered  by  congress  as  readmitted. 

The  congressional  plan  proper  began  with  the  first  re- 
construction act  of  March  second,  1867.  This  divided  the 
ten  southern  states  (excepting  Tennessee)  into  five  military 
districts  and  arranged  that  conventions  should  be  called  to 
reorganize  state  governments,  but  with  the  proviso  that 
the  voting  body  should  include  all  domiciled  male  adults 
of  whatever  race,  color,  or  previous  condition,  except  those 
disfranchised  for  participating  in  the  rebellion.  In  other 
words,  the  electorates  would  be  made  up  largely  of  negroes, 
northerners  resident  in  the  south  (locally  known  as  carpet- 
baggers), and  native  southerners  unionists  in  sympathy 
(known  as  scalawags).  Furthermore,  each  state,  through 
its  legislature  when  organized  under  the  new  constitution, 
was  required  to  ratify  the  fourteenth  amendment  as  a  req- 
uisite for  admission.  On  March  twenty-third,  a  supple- 
mentary act  was  passed,  authorizing  the  commanding 

1  Constitution  of  United  States.    Article  I.  Section  2,  clause  3. 


SECESSION  AND   RECONSTRUCTION  65 

general  in  each  district  to  see  to  it  that  voters  were  properly 
registered  and  conventions  called.  A  third  act,  July 
nineteenth,  made  clear  the  point  that  the  provisional  govern- 
ments 1  in  the  ten  states  were  not  to  be  recognized  as  legal 
governments,  and  during  their  continuance,  were  to  be  in 
all  respects  subject  to  the  military  commanders  of  the  re- 
spective districts  and  to  congress.  All  three  of  these  acts 
were  vetoed  by  the  president  but  were  repassed  over  his 
veto.2  Finally,  congress,  in  order  to  strengthen  its  posi- 
tion still  further,  forbade  the  supreme  court3  to  exercise 
jurisdiction  over  habeas  corpus  cases  arising  under  the  re- 
construction laws  of  congress. 

In  pursuance  of  these  acts  the  military  commanders  in 
their  several  districts  saw  to  it  that  voters  were  listed,  con- 
ventions called,  constitutions  submitted,  and  governments 
organized  under  the  adopted  constitutions.  The  first 
conventions  began  their  sessions  in  November,  1867,  and 
by  the  end  of  the  following  June  several  states  were 
ready  for  readmission.  Arkansas  was  the  first  readmitted, 
June  twenty-second,  it  having  endorsed  the  fourteenth 
amendment.  Three  days  later  North  Carolina,  South 
Carolina,  Louisiana,  Alabama  and  Florida  were  by  act 
informed  that  they  would  be  readmitted,  as  soon  as  their 
legislatures  had  endorsed  the  fourteenth  amendment; 
Georgia  received  the  same  promise  but  with  a  further  con- 
dition in  respect  to  certain  clauses  in  its  constitution  which 
discriminated  against  loyalists.  These  six  states  by  July\ 
twenty-first  having  complied  with  all  conditions  were,  \ 
therefore,  readmitted.  These  ratifications  completed  the  J 

1  Organized  under  Presidents  Lincoln  and  Johnson. 

2  A  fourth  act  was  passed  March  eleventh,  1868,  modifying  and  supple- 
menting the  previous  acts. 

8  Act  March  twenty-seventh,  1868.     See,  Ex  parte  Wm.  H.  McCardle, 
7  Wallace,  506-15. 


66  AMERICAN  STATE   CONSTITUTIONS 

number  necessary  for  the  passage  of  the  fourteenth  amend- 
ment and  it  was  proclaimed  July  twenty-eighth,  1868. 

In  the  case  of  the  three  remaining  states,1  where  com- 
plications had  arisen,  congress  on  April  tenth,  1869,  by 
act  made  some  modifications  in  its  requirements  for  their 
admission  but  demanded  f  that  their  legislatures,  when 
organized,  should  ratify  the  fifteenth  amendment,  which 
had  been  passed  February  twenty-seventh  and  referred  to 
the  states.  Finally  these  three  states  complied  with  the  re- 
quirements, and  in  1870  were  readmitted,  Virginia  on  Janu- 
ary twenty-sixth,  Mississippi  on  February  twenty-third, 
and  Texas  on  March  thirtieth,  on  which  date  the  passage 
of  the  fifteenth  amendment  was  proclaimed. 

SUMMARY  OF  CHANGES 

In  summarizing  the  changes  made  in  the  southern  con- 
stitutions, it  may  be  said  that  the  secession  changes  merely 
made  the  needed  readjustments  to  the  new  system.  Under 
the  Lincoln  policy  of  reconstruction,  emphasis  was  placed 
on  the  fact  that  the  new  governments  should  be  loyal  and 
should  therefore  repeal  the  ordinance  of  secession,  repudiate 
debts  incurred  in  aid  of  the  rebellion  and  preferably  should 
abolish  slavery.  These  changes  involved  questions  of  civil 
rights  and  suffrage,  since  the  status  of  slaves  made  free 
needed  to  be  defined.  The  points  discussed  in  the  con- 
ventions therefore  were;  should  the  suffrage  (and  office 
holding)  be  confined  to  loyal  whites,  or  thrown  open  to 
negroes  also  ?  Furthermore,  should  negroes  be  enrolled  in 
the  militia  of  the  state,  and  should  the  public  schools  of  the 
state  be  thrown  open  to  children  without  regard  to  race 
or  previous  condition  of  servitude?  The  four  states2 

1  Virginia,  Mississippi,  Texas. 

f  Virginia,  Arkansas,  Louisiana,  Tennessee. 


SECESSION  AND   RECONSTRUCTION  67 

concerned,  through  their  conventions,  met  these  problems 
in  varying  fashion  in  the  constitutions  they  devised,  but  as 
the  conventions  represented  small  minorities  only  of  their 
populations,  and  as  congress  refused  to  readmit  three  of  the 
states  under  these  constitutions,  they  may  well  be  omitted 
from  the  discussion.  In  the  same  manner  the  seven  states 
reconstructed  by  President  Johnson  had  practically  the  same 
situation,  complicated  only  by  the  necessity  of  acting  also 
on  the  thirteenth  and  fourteenth  amendments.  There 
was  virtual  unanimity  in  respect  to  the  repeal  of  the  se- 
cession ordinance,  the  repudiation  of  war  debts,  and  the 
abolition  of  slavery,  but  wide  differences  of  opinion  in 
respect  to  the  extension  of  suffrage  and  office  holding  rights, 
and  little  or  no  desire  to  go  far  in  the  extension  of  political 
rights  or  effective  civil  rights  to  the  enfranchised  blacks. 
Nor,  finally,  was  the  fourteenth  amendment  at  all  favored, 
because  of  the  character  of  its  sweeping  changes  in  enlarg- 
ing federal  powers. 

In  consequence  of  this  situation,  and  in  view  of  the 
turmoil  and  disorder  prevalent  in  the  South,  congress  took 
the  entire  matter  into  its  own  hands,  placed  the  ten  states 
(excepting  Tennessee)  under  military  rule,  laid  down  con- 
ditions, and  insisted  that  action  be  promptly  taken.  Con- 
ventions were  thus  organized  made  up  almost  entirely  of 
colored  and  loyalist  delegates,  who  prepared  constitutions, 
which  in  many  instances  reproduced  provisions  from 
Northern  constitutions,  and  which  were  later  submitted  to 
voting  bodies  made  up  of  domiciled  adult  males  of  both 
races,  who  were  not  disqualified  for  rebellion.  Pressure 
was  then  brought  so  as  to  ensure  prompt  action  and  satis- 
factory results.  Technicalities  were  not  allowed  to  stand  in 
the  way :  Alabama's  constitution  which  did  not  receive  the 
proper  majority  was  yet  accepted;  Virginia,  Mississippi 


68  AMERICAN  STATE  CONSTITUTIONS 

and  Texas  were  allowed  to  separate  obnoxious  clauses  for 
separate  votes,  in  order  that  the  main  constitutions  might 
be  endorsed;  Georgia  after  readmission  was  again  put 
inder  military  control  and  reconstructed ;  but  finally  in 
about  three  years  after  the  passage  of  the  first  act,  the 
eleven  states  were  restored  to  the  Union  and  a  "  Roman 
peace"  prevailed  throughout  the  south.  Then,  as  a  sort  of 
climax  to  the  whole  matter  came  the  decision  of  the  supreme 
court  in  the  case  of  Texas  vs.  White  (1868),  in  which  it 
was  declared  that  the  United  States  is  "an  indestructible 
Union,  composed  of  indestructible  States."  Hence,  the 
eleven  states  had  never  legally  seceded,  each  had  remained 
a  state  in  the  Union  but  with  suspended  rights  on  account 
of  rebellion.  Congress  therefore  had  performed  its  duty 
in  restoring  the  southern  states  once  again  into  harmonious 
relationship  with  their  sister  states  in  the  Union. 

From  another  standpoint  the  essence  of  the  changes  made 
in  reconstruction  might  best  be  summarized  as  follows ;  the 
secession  ordinances  were  declared  illegal  and  the  "para- 
mount authority  of  the  federal  government"  asserted. 
War  debts  in  aid  of  the  rebellion  were  repudiated,  and 
the  three  war  amendments  to  the  national  constitution 
were  forced  through  as  conditions  for  admission.  This 
involved  the  abolishment  of  slavery  and  the  admission 
of  the  colored  to  suffrage  and  office-holding  privileges  on 
the  same  terms  as  the  whites.  The  right  to  serve  in  the 
militia  and  to  secure  similar  educational  privileges  as  the 
whites  were  also  secured  to  the  blacks  by  the  terms  of 
the  fourteenth  amendment,  though  not  expressly  stated  in 
the  constitutions.  The  real  struggle  in  the  conventions  was 
as  to  how  far  discrimination  should  be  made  against  those 
who  had  fought  in  the  rebellion.  The  exceptions  made  by 
congress  in  favor  of  Virginia  and  Mississippi,  for  instance, 


SECESSION  AND   RECONSTRUCTION  69 

lay  in  permitting  these  to  vote  separately  on  test  oath  and 
disfranchisement  clauses,  which  the  voters  then  joyously 
voted  down.  In  general,  however,  throughout  the  south 
the  leading  whites  were  disfranchised  and  the  negro  voters 
with  their  friends  were  in  power —  the  so  called  "  carpet-bag 
governments." 

In  all  these  changes  real  revisions  of  the  constitutions 
were  not  made.  There  was  one  definite  issue  before  the 
conventions  —  readmission  to  the  Union  by  accepting  the 
terms  set  by  congress  —  and  other  matters  were  neglected. 
Later,  when  excitement  had  died  down,  and  war  and  recon- 
struction were  really  over,  questions  of  revision  came  to 
the  front  and  occupied  the  attention  of  the  states. 


CHAPTER  VII 

SECESSION,  RECONSTRUCTION  AND 
READJUSTMENT  (Continued) 

IN  the  congressional  acts  for  the  readmission  of  the  ten 
rebellious  states  it  was  made  a  fundamental  condition  that 
the  constitutions  should  never  be  so  altered  "as  to  deprive 
any  citizen  or  class  of  citizens  of  the  United  States  of  the 
right  to  vote,  who  are  entitled  to  vote  by  the  constitution 
herein  recognized."  Under  the  theory  of  the  constitution 
the  states  within  the  Union  are  equal  one  to  another.  Con- 
gress may  dictate  terms  to  territorial  governments,  and  to 
provisional  governments  in  states,  and  place  upon  them 
conditions,  or  insist  on  "irrevocable  compacts,"  but  once 
the  state  becomes  a  full  fledged  member  of  the  Union,  such 
conditions  and  compacts  may  remain  as  moral  obligations 
but  would  hardly  be  enforcible  at  law.  Presumably 
congress,  if  it  took  the  matter  seriously,  might  exert  pres- 
sure on  the  recalcitrant  state,  but  such  a  possibility  is 
hardly  conceivable.  In  the  main  such  conditions  are  in 
themselves  reasonable  and  are  endorsed  by  the  public 
opinion  within  the  states,  but  should  this  not  prove  to 
be  true,  then  the  states  might  feel  inclined  to  disregard 
what  may  come  to  be  considered  as  unjust  restrictions, 
and  by  constitutional  amendment  may  rearrange  their 
fundamental  law  in  accord  with  what  seems  right  under 
the  conditions. 

Such  a  process  of  readjustment  has  been  going  on  in 
the  south  since  reconstruction.  On  the  part  of  congress 

70 


SECESSION  AND   RECONSTRUCTION  71 

successive  acts  have  been  passed  removing  the  disabilities 
formerly  placed  on  those  who  participated  in  the  rebellion. 
Within  the  states  themselves  there  came  a  revulsion  of 
feeling  against  the  misrule  and  corruption  of  reconstructed 
" carpet-bag"  governments,  so  that  one  after  the  other  the 
states  of  the  rebellion  overthrew  the  organizations  of  the 
republican  party  in  control  of  their  governments,  estab- 
lished by  fair  or  unfair  methods  white  supremacy,  and  by 
amendments  and  revisions  to  their  constitutions  readjusted 
these  documents  to  their  own  liking  and  virtually  deprived 
the  mass  of  negroes  of  suffrage.  Suffrage  restrictions  of  a 
constitutional  sort  did  not  begin  until  1890,  with  the 
constitution  of  Mississippi,  but  in  other  respects  readjust- 
ments began  almost  immediately,  so  that  within  the  first 
decade  seven  of  the  states 1  revised  their  constitutions  through 
conventions,  one2  in  the  decade  following,  two3  others  in  the 
last  decade  of  the  century,  and  Virginia  last  of  all  in  1902. 
Omitting  for  the  present  the  last  three,  attention  will  now 
be  given  to  the  chief  changes  wrought  in  the  constitutions  of 
the  southern  states,  taking  up  (i)  the  three  reconstruction 
constitutions  of  Mississippi,  South  Carolina  and  Virginia 
and  (2)  the  revisions  made  in  the  reconstruction  constitu- 
tions of  the  other  eight  states. 

THE  RECONSTRUCTION  CONSTITUTIONS 

Mississippi  in  its  reconstruction  constitution  of  1868 
put  forth  a  moderate  document  in  length  about  eleven 
thousand  words.  In  its  earlier  form  it  was  rejected  at 
the  polls  but  was  endorsed  when  by  exception  its  disability 

Tennessee,  1870;  Arkansas,  1874;  Alabama,  North  Carolina  and 
Texas,  1875;  Georgia,  1877;  Louisiana,  1879. 

2  Florida,  1885. 

3  Mississippi,  1890;  South  Carolina,  1895. 


72  AMERICAN  STATE  CONSTITUTIONS 

and  test  oath  clauses  were  allowed  to  be  voted  on  separately 
and  voted  down.  Consequently,  as  in  the  similar  case  of 
Virginia,  there  was  no  immediate  necessity  for  change  in 
the  seventies.  The  constitution  included  the  "paramount 
allegiance"  clause  and  a  declaration  against  secession  and 
slavery.  It  forbade  up  to  1885  a  property  or  educational 
qualification  for  voting;  though  elections  were  biennial 
there  was  to  be  an  annual  session  of  the  legislature,1  but 
this  was  changed  by  amendment  in  1878.  The  governor 
had  a  four  year  term  and  the  veto,  the  important  judges 
were  appointed  by  governor  and  senate,  free  schools  were 
provided  for,  and  in  the  amending  clause  no  provision  was 
made  for  a  convention,  it  being  assumed  that  the  legislature 
had  that  general  power. 

South  Carolina  had  also  in  its  reconstruction  constitu- 
tion the  usual  declarations  against  slavery,  secession  and  in 
assertion  of  the  " paramount  authority"  of  the  Union.  Its 
constitution  numbered  about  twelve  thousand  words  and 
was  fair  in  its  attitude  towards  its  white  citizens.  Its 
disqualification  clause  followed  in  the  main  the  attitude 
taken  in  the  fourteenth  amendment,  suffrage  was  thrown 
open  to  male  citizens,  and  provisions  made  for  free  public 
schools  open  to  all  without  regard  to  race  or  color.  The 
election  of  presidential  electors  passed  from  the  legislature 
to  the  citizens,  readjustments  were  made  in  legislative  rep- 
resentation, the  governor  had  a  two  year  term  with  the 
veto,  and  important  judges  were  to  be  elected  by  the 
assembly.  In  addition  to  other  matters  provisions  were 
inserted  for  the  revision  of  laws,  and  the  better  regulation 
and  control  of  corporations  and  penal  and  charitable  in- 
stitutions. Amendments  needed  the  action  of  two  assem- 
blies and  a  provision  was  inserted  providing  for  the  calling 

1  A  usual  provision  in  the  congressional  reconstruction  constitutions. 


SECESSION  AND   RECONSTRUCTION  73 

of  a  convention.  In  1873  by  amendment  a  maximum  debt 
provision  was  inserted  with  a  referendum  requirement  in 
the  case  of  a  debt  proposed  in  excess  of  the  maximum. 

Virginia,  like  Mississippi,  was  favored  by  being  allowed 
to  vote  separately  (of  course  adversely)  on  its  test  and  dis- 
franchisement  clauses,  so  that  there  was  no  special  need 
for  a  speedy  revision.  Its  reconstruction  constitution  was 
lengthy,  over  fifteen  thousand  words,  and  had  the  usual 
provisions  against  slavery  and  secession  and  in  favor  of 
general  education  and  a  paramount  allegiance.  It  provided 
for  biennial  elections  with  annual  sessions,1  limited  to  a 
ninety-day  session,  a  specified  reapportionment  for  the 
legislative  branches,  a  governor's  term  of  four  years  and 
the  veto,  with  a  judiciary  elected  by  the  assembly.  Pro- 
vision in  respect  to  local  government  occupied  much  space 
and  provision  was  made  for  free  schools  throughout  the 
state.  The  suffrage  requirement  of  male  citizenship  was  in 
1876  altered  by  excluding  those  guilty  of  " petit  larceny," 
and  by  demanding  a  prepaid  poll  tax,  though  this  latter 
provision  was  dropped  by  amendment  in  1882.  An  article 
provided  for  amendments  but  not  for  a  convention. 

REVISION  OF  RECONSTRUCTION  CONSTITUTIONS 

Turning  now  to  the  eight  reconstruction  constitutions 
which  were  revised  in  the  next  fifteen  years,  it  may  be  noted 
that  the  changes  were  chiefly  directed  towards  the  removal 
of  the  disqualification  and  compulsory  clauses  of  the  re- 
construction period.  Furthermore,  may  be  noted  a  read- 
justment necessitated  by  the  three  war  amendments  to 
the  national  constitution ;  a  partial  return  to  the  constitu- 
tional system  prevailing  before  the  war,  and  somewhat 

1  Changed  to  biennial  in  1876  by  amendment. 


74  AMERICAN  STATE  CONSTITUTIONS 

awkward  attempts  to  meet  new  economic  conditions 
arising  in  the  south. 

Tennessee  began  by  calling  a  convention  in  1870  which 
referred  its  constitution  to  popular  vote.  The  constitution 
was  largely  a  return  to  its  earlier  constitution,  eliminating 
its  severe  disfranchisement  clauses  and  by  contrast  requiring 
a  prepaid  poll  tax  for  suffrage,  separate  schools  for  black 
and  white  and  forbidding  miscegenation.  The  amending 
article  provided  also  for  the  calling  of  a  convention,  if  a 
referendum  so  demanded. 

In  Arkansas  the  fourteen  thousand  word  reconstruction 
constitution  was  increased  by  over  seven  thousand  words 
when  a  convention  met  in  1874  and  submitted  a  constitu- 
tion to  the  voters.  One  might  assume  that  there  was 
something  besides  religious  fervor  in  the  hearts  of  the 
members  when  they  added  to  the  preamble,  "  grateful  to 
Almighty  God  for  the  privilege  of  choosing  our  own  form 
of  government."  From  the  new  constitution  were  dropped 
the  secession,  paramount  allegiance,  test  oath  and  dis- 
franchisement clauses.  Biennial  elections1  and  the 
governor's  veto  over  items  in  appropriation  bills  appear 
along  with  a  reapportionment  of  the  legislators.  Much 
attention  was  given  in  lengthy  sections  to  the  reorganiza- 
tion of  the  judiciary  and  the  courts  of  the  State. 

The  Alabama  constitution  of  1875,  approved  on  ref- 
erendum, was  about  four  thousand  words  longer  than  the 
reconstruction  constitution  of  1867.  The  oath  and  dis- 
qualification clauses  disappear,  a  specified  reapportionment 
in  the  legislature  is  given,  the  annual  session  yields  to  the 
biennial,  and  the  governor  gains  the  power  io  veto  items  of 
appropriation  bills.  Separate  racial  public  schools  are 
required  and  Taxation  enlarges  from  seven  printed  lines 

1  Added  by  amendment  in  1873. 


SECESSION  AND   RECONSTRUCTION  75 

to  a  page  and  a  quarter.  An  awkward  and  cumbersome 
method  of  amending  was  provided,  and  a  simple  procedure 
for  the  calling  of  a  convention. 

North  Carolina  made  few  changes  of  significance  in  its 
revision  of  1876,  which  was  ratified  at  the  polls.  The 
constitution  in  size  remained  about  the  same,  and  the  seces- 
sion and  paramount  allegiance  clauses  were  not  dropped. 
" Carpet  bag"  government  debts  as  well  as  war  debts 
were  repudiated,  separate  schools  provided,  miscegenation 
forbidden,  and  voters  required  to  register.  The  governor 
had  a  four  year  term  but  no  veto,  and  judges  were  to  be 
elected'.  Provision  was  made  for  amendment  and  revision 
by  simpler  methods  than  those  of  the  earlier  constitution. 

Texas  in  revising  its  constitution,  which  was  prepared  in 
1875  and  ratified  in  1876,  increased  its  length  by  over  six 
thousand  words,  a  total  of  about  twenty-three  thousand. 
The  usual  clauses  disappear :  secession,  national  supremacy, 
disqualifications,  as  well  as  a  provision  against  peonage. 
Annual  sessions  yielded  to  biennial,  judges  were  elected 
instead  of  appointed  by  governor  and  senate,  and  the 
governor  received  the  right  to  veto  items  of  appropriation 
bills.  Separate  racial  schools  were  demanded  and  many 
restrictions  placed  on  the  powers  of  the  legislature.  The 
cumbersome  two  legislature  system  of  amending  yielded  to 
the  simple  method  of  joint  action  through  one  legislature 
and  the  electorate. 

Georgia  in  its  constitution,  made  and  ratified  in  1877, 
lengthened  its  fundamental  law  from  about  eleven  thousand 
to  eighteen  thousand  words.  The  reconstruction  constitu- 
tion contained  no  test  oath  nor  severe  disfranchisement 
clauses  but  the  new  constitution  dropped  the  paramount 
allegiance  clause  and  provided  for  separate  racial  schools. 
Legislative  apportionment  was  detailed  in  the  constitution 


76  AMERICAN  STATE   CONSTITUTIONS 

and  biennial  took  the  place  of  annual  sessions.  The 
governor  received  the  right  to  veto  items  but  judges  of  the 
supreme  court  were  elected  by  the  assembly.  Insurance 
companies  were  regulated  rather  fully  and  provisions  in- 
serted for  a  convention  as  well  as  for  amendments. 

Louisiana  in  1879  formulated  and  ratified  a  new  constitu- 
tion which  in  length  jumped  from  eleven  thousand  to  over 
twenty  thousand  words,  vying  with  that  of  Maryland 
(1867),  the  longest  of  its  day.  As  usual,  from  its  revised 
constitution  were  dropped  the  sections  in  respect  to  test 
oaths,  disfranchisement,  secession,  and  paramount  alle- 
giance, as  well  as  a  prohibition  against  separate  racial 
schools.  Annual  sessions  yielded  to  biennial,  legislative 
apportionment  was  detailed  and  numerous  restrictions 
were  inserted  on  legislative  authority.  The  governor's  veto 
was  strengthened  by  the  power  to  veto  items  but  the  supreme 
court  was  appointed  by  governor  and  senate.  The  three 
page  judiciary  article  of  the  earlier  constitution  lengthened 
to  fourteen  pages,  provisions  against  bribery  were  inserted, 
the  charter  of  the  Louisiana  Lottery  was  ordered  canceled 
in  1895,  and  lengthy  articles  on  Local  Government,  Corpora- 
tions, Taxation  and  Indebtedness,  occupied  much  space. 
No  provision  was  made  for  a  convention,  but  the  amend- 
ing process  was  made  simpler. 

Florida  had  not  inserted  in  its  reconstruction  constitution 
stringent  test  oaths  and  disfranchisement  clauses,  so  that 
there  was  no  urgent  need  for  revision.  Its  convention  met 
in  1885  and  the  constitution  was  ratified  the  following  year, 
lengthening  in  size  only  by  about  a  thousand  words.  The 
secession  section  was  dropped  but  the  paramount  allegiance 
clause  retained.  Separate  schools  were  required  and  misce- 
genation forbidden.  The  annual  session  yielded  to  the 
biennial,  the  governor  was  allowed  to  veto  items  and  judges 


SECESSION  AND   RECONSTRUCTION  77 

were  in  part  elected  and  in  part  appointed.  A  legislative 
reapportionment  was  made,  much  attention  given  to  ad- 
ministrative officers  and  a  special  article  given  to  Public 
Health.  The  complex  and  difficult  methods  of  amendment 
in  the  earlier  constitution  were  superseded  by  simple  pro- 
visions for  both  amendment  and  revision. 

OTHER  STATE  CONSTITUTIONS  REVISED  OR  AMENDED 

During  this  same  fourth  period,  in  addition  to  the  eleven 
seceding  states  of  the  south,  twelve  other  states  sought 
through  convention  or  commission  to  effect  some  changes 
in  their  fundamental  law.  Of  these  Missouri  and  Maryland 
demand  special  attention  since  they  were  largely  southern 
in  sympathy. 

(i)  Missouri.  When  the  secession  movement  broke  out 
the  governor  of  Missouri  sought  to  draw  his  state  into 
secession.  But  on  February  twenty-eighth,  1861,  a  conven- 
tion met  which  strongly  favored  the  Union.  It  promptly 
assumed  direction  of  affairs,  deposed  the  existing  adminis- 
tration, canceled  its  obnoxious  laws,  and  reorganized  the 
government.  The  convention  remained  in  existence  until 
July  first,  1863,  acting  as  a  sort  of  revolutionary  convention, 
serving  both  as  a  legislature  and  as  a  constitutional  conven- 
tion. It  provided  for  the  organization  of  the  state  militia, 
defined  the  qualifications  of  voters,  and  demanded  a  test 
oath  from  civil  officers,  so  as  to  eliminate  sympathizers 
with  the  south.  On  July  first,  1863,  it  abolished  slavery 
in  Missouri  after  July  fourth,  1870,  declaring  free  all  slaves 
henceforth  brought  into  the  state. 

On  January  sixth,  1865,  a  constitutional  convention  met 
which  submitted,  April  tenth,  a  revised  constitution  to  the 
voters  who  ratified  it,  June  sixth.  It  was  essentially  a 
"  reconstruction "  constitution,  since  it  denied  the  right  of 


78  AMERICAN  STATE   CONSTITUTIONS 

secession,  asserted  the  paramount  authority  of  the  United 
States,  disfranchised  rebels,  required  a  test  oath,  and 
declared  against  slavery  or  quasi-slavery  in  the  form  of 
apprenticeship.  It  at  the  same  time  made  a  legislative 
reapportionment,  but  confined  the  suffrage  to  white  males, 
and  permitted  an  educational  qualification  after  January 
first,  1876.  The  amending  article  provided  a  simple  and 
easy  method  both  for  amendment  and  revision.  In  1870 
the  test  oath,  the  disqualification  section,  and  the  word 
"  white  "  were  dropped  by  amendment  from  the  suffrage 
article  of  the  constitution.  In  1875  a  convention  was  called 
and  the  constitution  it  submitted  was  ratified  at  the  polls. 
This  constitution  was  about  twenty-four  thousand  words 
long,  exceeding  its  predecessor  by  nine  thousand  words. 
From  it  was  dropped  the  paramount  allegiance  clause  and 
in  place  of  it  came  an  emphasis  on  local  rights  and  au- 
tonomy.1 Suffrage  became  the  usual  manhood  form  and 
the  provision  of  the  previous  constitution  that  there  "may 
be"  separate  racial  schools  became  a  "shall  be"  at  this  time. 
In  many  respects  the  two  constitutions  were  alike,  but  in 
the  newer  document  the  governor  had  the  item  veto  and  a 
four  year  term  (instead  of  two) ;  three  and  one  half  pages 
of  limitations  were  placed  on  the  legislature,  as  well  as 
numerous  regulations  of  procedure.  The  judicial  system 
made  use  of  about  twenty-five  hundred  words,  and  local 
government,  especially  that  of  St.  Louis,  received  lengthy 

1  It  read  as  follows : 

"That  Missouri  is  a  free  and  independent  State,  subject  only  to  the 
Constitution  of  the  United  States;  and  as  the  preservation  of  the  States 
and  the  maintenance  of  their  governments  are  necessary  to  an  indestructible 
Union,  and  were  intended  to  coexist  with  it,  the  Legislature  is  not  authorized 
to  adopt,  nor  will  the  people  of  this  State  ever  assent  to,  any  amendment 
or  change  of  the  Constitution  of  the  United  States  which  may  in  anywise 
impair  the  right  of  local  self-government  belonging  to  the  people  of  this 
State."  Article  II.  section  3. 


SECESSION  AND   RECONSTRUCTION  79 

attention.  The  amending  process  was  continued  without 
change. 

(2)  Maryland.  The  abortive  movement  towards  seces- 
sion in  this  State  was  easily  suppressed  and  it  remained 
definitely  within  the  Union.  On  April  twenty- seventh,  1864, 
a  convention  under  Unionist  auspices  met  which  by  Sep- 
tember had  prepared  a  new  constitution.  This  was  ratified 
by  popular  vote,  October  thirteenth.  Three  years  later  a 
second  convention  met  and  its  constitution  when  sub- 
mitted was  also  ratified.  Maryland  is  a  small  state,  not  in 
need,  one  would  suppose,  of  a  lengthy  constitution.  The 
constitution  of  1851  contained  sixteen  thousand  words; 
that  of  1864,  twenty-one  thousand;  and  that  of  1867, 
over  twenty-five  thousand;  showing  the  steady  increase 
in  length  characteristic  of  state  constitutions. 

The>  constitution  of  1864  was  of  the  "reconstruction" 
type.  It  included  a  test  oath,  the  disfranchisement  of 
rebels,  a  declaration  against  slavery  and  an  assertion  of 
paramount  allegiance  to  the  United  States.  Suffrage  was 
restricted  to  white  males  and  the  bill  of  rights  included 
forty-five  sections,  about  twice  the  usual  number.  The 
executive  had  no  veto  but  judges  were  elected,  nearly  five 
thousand  words  were  needed  for  the  judicial  system,  and 
biennial  sessions  were  demanded  with  a  payment  limited 
to  a  session  of  eighty  days. 

From  the  constitution  of  1867,  prepared  under  Demo- 
cratic influence,  as  might  be  expected,  were  dropped  the 
test  oath,  disfranchisement  clause,  and  the  section  on 
paramount  allegiance,  and  by  contrast  Article  24  of  the 
bill  of  rights  demanded  compensation  from  the  United 
States  for  enfranchised  slaves.  The  governor  had  the  veto 
power  given  to  him,  and  the  eighty  day  limit  for  the  legis- 
lature was  made  ninety. 


So  AMERICAN  STATE   CONSTITUTIONS 

(3)  Vermont.    In  this  State,  it  will  be  remembered,  the 
board  of  censors  was  to  meet  every  seven  years  to  pro- 
pose amendments.     No  action  was  taken  in  1862  but  in 
1869  the  board  recommended  a  change  from  an  annual  to 
a  biennial  election  and  session  and  also  its  own  abolition. 
In  place  of  the  board  it  recommended  that  in  1880,  and 
every  ten  years  thereafter,  the  senate  by  a  two  thirds  vote 
propose  amendments  to  the  house.     If  the  house  concurred 
by  a  majority  vote,  that  then  such  amendments  be  referred 
to  the  next  assembly.     If  this  concurred  by  a  majority 
vote  in  each  house,  that  then  a  referendum  to  the  voters 
be  made,  ratifying  by  a  majority  vote.     These  recommenda- 
tions were  approved  by  the  convention  of  1870  so  that  the 
board  of  censors  passed  out  of   existence.     In  1880  two 
minor  amendments  passed  the  ordeal  above  mentioned  and 
became  part  of  the  constitution. 

(4)  New  York.   A  convention  met  1867-68  to  revise  the 
constitution,  but  the  revision  when  submitted  November 
second  was  rejected,  except  that  Article  VI  respecting  the 
judicial  system,  which  was  submitted  separately,  was  en- 
dorsed. 

In  1872  the  legislature  authorized  a  commission  of  thirty- 
two  persons  to  propose  amendments  to  the  constitution. 
A  carefully  prepared  and  lengthy  list  of  amendments  was 
submitted  by  this  body  to  the  legislature,  which  passed  them. 
By  the  terms  of  the  constitution  these  had  to  be  approved 
by  the  next  following  legislature  and  referred  to  popular 
vote.  The  second  legislature  modified  certain  of  these  and 
submitted  the  revised  set  to  the  voters,  who  approved 
them.  Those  modified  by  the  second  legislature  were  not 
constitutionally  passed,  but  the  others  became  part  of 
the  constitution.  The  chief  changes  made  provided  for  a 
legislative  reapportionment,  placed  further  limitations  on 


SECESSION  AND   RECONSTRUCTION  81 

legislative  authority,  and  made  the  governor's  term  three 
years  instead  of  two,  giving  him  also  the  item  veto. 

(5)  Illinois.    This  State  in  1862  summoned  a  convention 
whose    constitution   when   submitted   to   the  voters   was 
rejected.      Seven    years    later    another    convention    met 
and   prepared   a   constitution   which   was   accepted   July 
second,  1870,  on  referendum.     The  new  constitution  added 
about  six  thousand  words  by  additions  and  enlargements, 
and   included   a   reapportionment   of   the   assembly,    the 
biennial  election,  a  four  year  term  for  the  governor  and  an 
elected  judiciary.     A  new  device  came  in  the  form  of  a  three 
cornered  system  of  minority  representation  in  the  election 
of  members  to  the  lower  house.     Careful  attention  was  given 
to  the  article  on  amendments  and  revision  but  the  methods 
of  change  were  made  difficult  by  the  vicious  requirement 
of  a  " majority  of  those  voting  at  an  election"  for  amend- 
ments or  the  calling  of  a  convention.     In  1884  an  amend- 
ment was  added  to  the  constitution  giving  the  governor  the 
item  veto. 

(6)  Michigan  in  1862  adopted  an  amendment  providing 
that  in  1866  and  every  sixteen  years  thereafter  the  question 
of  calling  a  convention  should  be  referred  to  the  voters. 
The  referendum  was  approved  in  1866  and  a  convention 
called  in  1867  whose  constitution  was  rejected.     In  1868 
and  1870,  amendments  were  passed  providing  for  a  biennial 
session  and  a  reapportionment  of  membership  in  the  legis- 
lature.    In   1873,   by  joint  resolution  a  commission  was 
appointed    to    recommend    changes    in    the    constitution. 
The  commission's  report  was  approved  by  the  legislature  of 
1873,  but  rejected,  1874,  at  an  extra  session  of  the  next 
following  legislature.     In   1882,  as  required  by  constitu- 
tion, a  referendum  was  submitted  respecting  the  calling  of 
a  convention  but  met  with  a  negative  response. 


82  AMERICAN  STATE   CONSTITUTIONS 

(7)  Ohio  in  1873-74  held  a  convention  whose  constitu- 
tion when  submitted  was  rejected  at  the  polls.1 

(8)  Pennsylvania  in  1872  summoned  a  convention  under 
its  general  legislative  powers,  which  submitted  a  constitu- 
tion, December  sixteen,  1883.     This  was  accepted  on  ref- 
erendum and  was  declared  in  force  by  the  convention  which 
reassembled,  December  twenty-eighth.     The  constitution 
was  more  than  double  the  length  of  the  older  one,  adding 
some  ten  thousand  words.     It  included  a  reapportioned 
legislature,  a  biennial  election  and  session,  many  limita- 
tions on  legislative  powers,  a  four  year  term  for  the  governor 
along  with  the  item  veto,  and  an  elected  judiciary.     In 
the  amending  article  no  provision  was  made  for  the  calling 
of  a  convention  for  revision  purposes. 

(9)  Maine  in  1875  determined  to  try  the  commission 
plan  and  by  resolve  of  January  twelfth  the  governor  was 
authorized  to  appoint  a  commission  of  ten  persons,  "to 
consider  and  frame  such  amendments  to  the  constitution 
of  Maine  as  may  seem  necessary,  to  be  reported  to  the  legis- 
lature."    Of  the  twenty-one  amendments  submitted  by 
this  commission,  nine  were  accepted  by  the  legislature  and 
on  referendum  were  adopted.     The  most  important  of  these 
gave  the  legislature  the  power  by  a  two-thirds  vote  to  call 
a   constitutional   convention   for   revision   purposes.     By 
amendment  in  1879,  biennial  sessions  and  elections  were 
substituted  for  annual;    in  1880  a  plurality  vote  was  de- 
clared sufficient  for  gubernatorial  elections,  and  in  1883 
Maine's  famous  prohibition  amendment  was  passed. 

do)  New  Hampshire,  in  December,  1876,  called  a  con- 
vention which  submitted  amendments  to  referendum 
March,  1877.  Those  adopted  readjusted  representation, 

1  For  further  details  see,  pamphlet,  Constitutional  Conventions  of  Ohio, 
by  C.  B.  Galbreath. 


SECESSION  AND   RECONSTRUCTION  83 

provided  for  biennial  instead  of  annual  elections  and  ses- 
sions, and  made  the  date  of  election  November  instead  of 
March.  The  governor  and  members  of  the  legislature  were 
no  longer  required  to  be  "of  the  Protestant  religion." 

(n)  California  in  1862  had  passed  several  important 
amendments  providing  for  biennial  sessions  and  elections, 
the  reorganization  of  the  courts,  the  election  of  judges 
and  a  revised  article  on  amending.  In  1878-79  however, 
a  convention  was  held  and  a  new  constitution  was  submitted 
and  ratified  on  May  seventh.  It  more  than  doubled  the 
length  of  the  old  constitution,  adding  over  ten  thousand 
words.  This  was  chiefly  due  to  the  regulation  of  the  legis- 
lature's powers  through  procedure  and  limitations,  and  the 
elaboration  and  addition  of  articles  in  respect  to  such 
subjects  as  Local  Government,  Corporations,  Revenue  and 
Taxation  and  the  Chinese. 

(12)  New  Jersey  in  1873  through  a  commission  reported 
to  the  legislature  amendments  to  the  constitution,  the 
chief  of  which  were  the  item  veto  and  the  placing  of  limi- 
tations on  legislative  powers.  These  were  referred  and 
adopted.  An  act  of  1881  required  the  governor  to  appoint 
a  commission  "to  prepare  amendments  to  the  Constitu- 
tion of  this  State";  the  commission  reported  to  the  next 
following  legislature  but  no  action  was  taken  on  the  report. 

During  this  same  fourth  period,  eleven  of  the  states 
confined  their  changes  in  constitutions  to  amendments. 
Five x  of  these  either  made  no  amendments  or  passed  none 
of  special  importance.  Of  the  other  six,  Connecticut 
reapportioned  its  house  slightly  and  adopted  the  Novem- 
ber election  and  biennial  elections  and  sessions.  Indiana 
in  1 88 1  struck  out  its  peculiar  Article  XIII,  which  for- 
bade negroes  to  settle  in  the  state  and  arranged  for  the 

1  Delaware,  Oregon,  Kentucky,  Massachusetts,  Rhode  Island. 


84  AMERICAN  STATE  CONSTITUTIONS 

colonization  of  such  as  were  already  domiciled.  Iowa  read- 
justed its  judicial  system  and  changed  to  the  November 
election.  Kentucky  modified  its  legislative  apportionment 
and  adopted  the  biennial  session.  Minnesota  adopted  the 
item  veto,  the  November  election  and  biennial  elections, 
forbade  the  use  of  school  moneys  for  sectarian  purposes, 
and  inserted  precautionary  sections  in  respect  to  state 
finances,  public  debts,  and  the  investment  of  school  funds. 
Wisconsin  adopted  the  November  election,  biennial  elec- 
tions and  sessions  and  placed  many  prohibitions  on  the 
passage  of  special  and  private  bills. 

NEW  STATES 

During  this  fourth  period  four  new  states1  were  added 
to  the  Union,  each  entering  with  fairly  conservative  and 
relatively  short  constitutions.  The  process  whereby  West 
Virginia  became  separated  from  Virginia  has  already  been 
explained.  Its  constitution  of  1862  was  in  substance  a 
reproduction  in  its  essential  features  of  the  Virginia  con- 
stitution, omitting  its  lengthy  preamble  and  shortening  its 
bill  of  rights.  Suffrage  was  given  to  white  male  citizens  of 
the  state  and  provision  was  made  for  the  gradual  emanci- 
pation of  slaves.2  An  amendment  passed  in  1866  provided 
for  the  disfranchisement  of  rebels.  In  1872  a  new  conven- 
tion was  held  and  the  constitution  it  prepared  was  ratified 
at  the  polls.  It  is  evident  that  the  war  was  over  and 
southern  influence  once  again  strong ;  test  oaths  were  con- 
demned, rebels  were  no  longer  disfranchised,  and  Article 
I  roundly  emphasized  states'  rights  and  local  autonomy. 

'West  Virginia,  Nevada,  Nebraska,  Colorado.  Kansas,  it  will  be 
remembered,  was  included  in  the  previous  period. 

2  This  section  was  required  by  congress  instead  of  one  forbidding  the 
admission  of  slaves  into  the  state  for  permanent  residence. 


SECESSION  AND   RECONSTRUCTION  85 

The  influence  of  the  older  Virginia  constitution  was  still 
marked,  but  local  questions  were  not  neglected.  The  con- 
stitution provided  for  a  legislative  reapportionment, 
biennial  sessions,  and  much  regulation  of  procedure,  pro- 
visions against  bribery,  and  many  limitations  on  local  and 
special  legislation.  The  governor  had  the  veto,  differing 
from  Virginia,  and  also  might  veto  the  items  of  appropria- 
tion bills.  Judges  were  elected  and  the  article  on  Judiciary 
was  enlarged.  Voters  had  to  be  registered  and  were  to  be 
male  citizens.  As  in  many  of  the  revised  constitutions  of 
this  period,  there  was  a  Homestead  article,  which  also 
secured  to  married  women  their  rights  in  property.  Cor- 
porations, Banks,  and  Railroads  came  in  for  their  share 
of  attention.  The  amending  process  was  simple  and 
provision  made  for  the  calling  of  a  convention. 

Nevada.  At  the  opening  of  the  civil  war,  Nevada,  with 
a  small  population  was  an  organized  territory  in  which 
slavery  was  permitted.  In  1863  the  inhabitants  without  an 
enabling  act  from  congress  called  a  convention  which 
submitted  a  constitution  to  the  voters,1  who  rejected  it.  On 
March  twenty-one,  1864,  congress  passed  an  enabling  act 
which  summoned  a  convention  for  July  fourth,  demanding 
as  conditions  for  admission  provisions  for  religious  freedom, 
against  slavery,  and  in  respect  to  public  lands.  A  consti- 
tution was  adopted  prohibiting  slavery  and  asserting  the 
paramount  authority  of  the  Union  and  its  full  power  to 
suppress  secession.  This  constitution  when  submitted 
was  ratified  by  a  large  majority  and  the  state  was  admitted 
by  proclamation,  October  thirty-first.  The  constitution 
thus  prepared  followed  traditional  lines.  It  had  a  preamble, 
a  declaration  of  rights,  three  departments  of  government 
and  the  usual  separate  articles  on  Education,  Debt  and 

1  The  population  in  1860  was  6,857,  in  1870,  42,491. 


86  AMERICAN  STATE   CONSTITUTIONS 

Finance,  Local  Government  and  Public  Institutions. 
Voters  were  to  be  white  male  citizens,  registered,  and  rebels 
disfranchised.  Legislative  apportionment  was  to  be  made 
on  the  basis  of  the  census  and  biennial  sessions  held.  There 
was  a  long  list  of  restrictions  on  local  and  special  legisla- 
tion. The  governor  had  a  four  year  term  and  the  veto,  and 
the  judiciary  was  elected  by  popular  vote.  The  amending 
process  required  action  by  two  legislatures  and  provision 
was  made  for  a  convention.  An  amendment  in  1880  threw 
suffrage  and  offices  open  to  all  male  citizens. 

Nebraska.  Congress,  April  nineteen,  1864,  had  passed 
an  enabling  act  authorizing  a  convention,  but  no  definite 
action  was  taken  at  the  time  in  the  territory.  In  February, 
1866,  an  informal  joint  committee  of  nine  members  of  the 
territorial  legislature  then  in  session,  hastily  prepared  a 
constitution.  This  was  promptly  passed  by  the  legislature 
as  a  joint  resolution,  and  when  submitted  to  the  voters, 
June  twenty-first,  was  ratified  by  a  small  majority.  Con- 
gress, February  ninth,  1867,  accepted  the  constitution, 
on  condition  that  the  suffrage  provision  should  state  that 
there  would  be  no  denial  of  suffrage  on  account  of  race  or 
color,  but  providing  that  this  change  might  be  made  by 
pledge  of  the  legislature.  This  condition  was  complied 
with,  February  twentieth,  and  on  March  first  the  president 
proclaimed  the  admission  of  the  new  state.  A  constitution 
hastily  prepared  for  an  emergency  without  the  aid  of  a 
convention,  obviously  was  not  intended  to  be  permanent. 
It  made  no  provision  for  amendments  but  did  provide  a 
simple  method  of  calling  a  convention  —  a  majority  vote 
of  legislature  and  of  voters  voting  on  a  referendum.  Such  a 
convention  was  called  in  1875  and  its  constitution  ratified 
October  twelfth.  The  document  itself  presented  the  well 
marked  features  of  constitutions  of  this  period  :  a  preamble, 


SECESSION  AND   RECONSTRUCTION  87 

bill  of  rights,  a  legislative  apportionment  based  on  census 
population  but  with  districts  specified  in  the  constitution,  a 
long  list  of  prohibitions  on  legislative  powers  and  regula- 
tions of  procedure,  and  a  biennial  session  with  a  limitation 
of  payment  for  forty  days  only.1  The  governor  had  a  two 
year  term  and  the  veto  power  including  the  veto  of  items  of 
appropriation  bills;  there  was  to  be  an  elected  judiciary 
and  manhood  suffrage.  The  constitution  contained  the 
usual  articles  on  Local  Government,  Education,  Finance 
and  Corporations.  The  process  of  amendment  and  revision 
was  made  difficult  by  demanding  on  referendum  a  majority 
of  those  voting  at  a  general  election. 

Colorado  did  not  find  the  process  of  admission  to  the  Union 
an  easy  one.  It  became  an  organized  territory  in  1861 
and  March  twenty-first,  1864,  an  enabling  act  was  passed  by 
congress  authorizing  a  constitutional  convention.  The 
constitution  when  submitted,  was  rejected  by  the  voters. 
A  second  constitution  prepared  in  1865  was  ratified  by  a 
small  majority.  Congress  passed  two  separate  acts  of 
admission  but  each  was  vetoed  by  President  Johnson  and 
neither  was  passed  over  his  veto.  March  third,  1875, 
an  act  of  congress  authorized  a  convention  which  completed, 
March  fourteenth,  1876,  a  constitution  which  was  ratified 
July  first  and  the  admission  of  the  state  was  proclaimed, 
August  first. 

The  constitution  provided  for  the  customary  biennial 
limited  session  of  a  legislature  based  on  census  .population, 
with  legislative  powers  closely  limited  and  regulated,  and 
many  long  articles  dictating  policy  on  important  topics  of 
legislative  jurisdiction.  The  governor  had  a  two  year 
term  and  the  regular  and  the  item  veto,  judges  were  elective 
and  the  system  of  courts  carefully  defined.  Suffrage  had 

1  Changed  to  sixty  days  by  amendment,  1886. 


88  AMERICAN  STATE   CONSTITUTIONS 

the  usual  provision  for  manhood  suffrage,  but  with  a  stipu- 
lation that  the  legislature  might  after  1890  demand  an  edu- 
cational qualification.  Along  with  the  constitution  was 
given  a  referendum  on  women's  suffrage,  which  met  with 
approval  at  the  polls.  The  question  of  prohibition  assumed 
some  definiteness  by  the  prohibition  of  the  manufacture  or 
sale  of  " spurious,  poisonous  or  drugged  liquors."  Tem- 
porarily laws  were  to  be  printed  in  English,  Spanish  and 
German.  The  amending  article  made  simple  but  excellent 
provisions  both  for  amending  and  revising  the  constitution. 

SPECIAL  REFERENCES 

BURGESS,  JOHN  W.     Reconstruction  and  the  Constitution. 
DUNNING,  WILLIAM  A.    Essays  on  the  Civil  War  and  Reconstruction. 
RHODES,  JAMES  FORD.     History  of  the  United  States,  from  the  Com- 
promise of  1850  to  1877.    Volumes  VI- VII. 
THORPE,  FRANCIS  N.     Constitutional  History  of  the  United  States. 

Three  volumes. 
Columbia  University  Series. 

Struggle  between  President  Johnson  and  Congress  over  Recon- 
struction, by  C.  E.  Chadsey,  Volume  VIII. 
Reconstruction  in  Georgia,  by  E.  C.  Wooley,  Volume  XIII. 
Reconstruction  in  Texas,  by  C.  W.  Ramsdell,  Volume   XXXVI. 
Reconstruction  in  Florida,  by  W.  W.  Davis,  Volume  LIU. 
Reconstruction  in  North  Carolina,  by  J.  G.  Hamilton,  Volume 

LVIII. 
Johns  Hopkins  Series. 

Reconstruction  in  Virginia,  by  H.  J.  Eckenrode,  Volume  XXII. 
Reconstruction  in  South  Carolina,  by  J.  P.  Hollis,  Volume  XXIII. 
Reconstruction  in  Louisiana,  by  J.  R.  Ficklen,  Volume  XXVIII. 
Maryland  Constitution  of  1851,  by  J.  W.  Harry,  Volume  XX. 
Maryland  Constitution  of  1864,  by  W.  S.  Myers,  Volume  XIX. 
The  Self-Reconstruction  of  Maryland,  1864-67,  by  W.  S.  Myers, 
Volume  XXVII. 


CHAPTER   VIII 

RECENT   CHANGES  IN  CONSTITUTIONS 
(1886-1914) 

IN  the  year  1886  thirty-eight  states  were  members  of  the 
Union  and  ten  others  have  been  added  since  that  date.1 
Of  the  thirty-eight  states  eleven2  have  successfully  held 
conventions  for  the  revising  of  their  fundamental  laws  and 
Vermont  in  1913  succeeded  in  modifying  its  constitution 
with  the  aid  of  a  commission.  Three 3  states  attempted  to 
revise  their  constitutions  but  without  success.  Referenda 
were  submitted  in  five  states4  asking  whether  conventions 
should  be  called,  but  were  negatived ;  New  York,  however, 
voted,  April,  1914,  to  hold  a  convention  in  1915. 

In  addition  to  revision,  the  states  have  not  neglected 
changes  through  the  amending  processes.  The  procedure 
of  amendment  is  simple  in  most  states  and  is  enlarged  in 
some  through  the  constitutional  initiative;  constitutions, 
moreover,  have  so  lengthened  by  the  insertion  of  petty 

1  In    1899,  North   Dakota,  South   Dakota,  Montana,  Washington;    in 
1890,  Idaho  and  Wyoming.     Utah  in  1896,  Oklahoma  in  1907,  New  Mexico 
and  Arizona  in  1912. 

2  Mississippi,  1890;  Kentucky,  1891 ;  New  York,  1894 ;  South  Carolina, 
1895;    Delaware,  1897;   Louisiana,  1898  and  1913;   Alabama,  1901;   Vir- 
ginia, 1902;    Michigan,  1908;    Ohio,  1912;    New  Hampshire,  1889,  1903, 
1912.     The  adopted  amendments  of  Oregon  since  1902,  and  of  California, 
are  so  numerous  and  fundamental  as  to  amount  virtually  to  revisions. 

3  Rhode  Island,  1898,  1899;   Connecticut,  1902,  1907;  Indiana,  1912. 

4  Maryland,  1907;    Iowa,  1900,  1910;    California,  Indiana,  and  South 
Dakota,  in  1914. 

89 


9o  AMERICAN  STATE  CONSTITUTIONS 

details  and  numerous  new  provisions,  that  frequent  amend- 
ments are  inevitable,  and  are  multiplying  out  of  all  pro- 
portion to  former  notions  of  fundamental  law.  In  the 
fourteen  years  from  1895-1 908, 1  five  hundred  ninety-five 
amendments  were  voted  on  by  the  electorates  of  the  states, 
three  hundred  forty-seven  of  these  were  adopted  and  two 
hundred  forty-eight  rejected.  The  number  seems  large 
and  is  large,  yet  the  average  per  state  constitution  is  less 
than  one  a  year  and  would  be  much  less  were  it  not  for  the 
" pernicious  activity"  of  several  states  that  apparently  are 
eager  to  hold  the  record  for  amendments.2 

In  the  remaining  part  of  this  chapter  attention  will  now 
be  directed  to  the  several  movements  among  the  states  in 
respect  to  revision  and  amendment,  and  to  the  constitutions 
of  the  ten -new  states,  but  without  attempting  to  specify 
in  detail  the  provisions  of  the  new  and  revised  constitutions. 
In  later  chapters,  under  Part  II,  will  be  given  the  main 
provisions  of  all  the  existing  constitutions,  as  they  are  at 
the  present  time. 

REVISED  AND  AMENDED  CONSTITUTIONS  IN  THE  SOUTH 

In  the  south  six  states  during  this  period  revised  their 
constitutions,  and  several  others  by  amendment  modified 
their  suffrage  articles,  with  more  or  less  severity,  so  as  to 
eliminate  the  supposed  danger  from  the  negro  vote.  These 
revised  constitutions  will  now  be  taken  up  in  turn,  but 

1  Since  1910  the  American  Year  Book  publishes  each  year  a  list  of  the 
amendments  before  legislatures  and  electorates. 

2  Oregon  from  1902-1914  inclusive  has  adopted  twenty-three  amendments 
and  rejected  forty;   California's  printed  constitution  of  1914  gives  eighty- 
three  amendments  as  adopted  since  1894;   Louisiana  from  1900-1912  sub- 
mitted about  eighty  amendments,  nearly  all  of  which  were  adopted.     These 
three  states  combined  submitted  in  1914  sixty-eight  amendments  to  refer- 
endum, thirty-six  of  which  were  ratified.     [Oregon,  21  (4);    California,  30 
(18);   Louisiana,  17  (14).] 


RECENT  CHANGES  gi 

the  suffrage  provisions  of  these  southern  constitutions  will 
be  considered  in  Chapter  XII. 

Mississippi  in  1890  undertook  to  revise  its  reconstruc- 
tion constitution  of  1868.  The  convention  adjourned 
November  first,  after  promulgating  on  its  own  authority 
without  referendum  a  constitution  double  the  length  of 
the  one  it  superseded.  This  additional  length  came  about 
largely  through  the  insertion  of  new  wordy  articles,1  nu- 
merous restrictions  and  prohibitions  on  legislation  (about 
twenty-five  hundred  words  added),  and  detailed  additions 
to  the  judiciary  article.  The  secession  and  paramount 
allegiance  section  of  the  bill  of  rights  was  retained,  but 
Section  Eighteen  was  dropped  which  read,  "No  property 
nor  educational  qualification  shall  ever  be  required  for 
any  person  to  become  an  elector."  Under  Education 
was  inserted  the  provision,  "Separate  schools  shall  be 
maintained  for  children  of  the  white  and  colored  races." 
Schools  of  some  sort  were  apparently  needed  even  for 
legislators,  for  Section  Forty  reads,  "Members  of  the  leg- 
islature before  entering  upon  the  discharge  of  their  duties 
shall  take  the  following  oath :  '  I,  .  .  .  will,  as  soon  as 
practicable  hereafter,-  carefully  read  (or  have  read,  to  me) 
the  constitution  of  this  state/  etc. ; "  -  a  theoretically 
good  requirement,  for  it  is  doubtful  whether  five  per  cent 
of  our  seven  thousand  state  legislators  could  pass  a  fair 
examination  on  the  provisions  of  their  respective  state 
constitutions. 

The  revised  constitution  radically  modified  suffrage  re- 
quirements, made  the  regular  session  of  the  legislature 
quadrennial,2  but  with  a  special  finance  session  midway  in 
the  term;  adopted  the  plan  of  numbering  its  paragraphs 

1  That  on  Corporations  has  about  two  thousand  words. 

2  But  in  1912  went  back  to  the  biennial  term. 


92  AMERICAN  STATE   CONSTITUTIONS 

consecutively,  a  great  convenience,  and  experimented  in  a 
curious  sort  of  " electoral  college"  system  in  the  election 
of  the  governor  and  other  administrative  officers.  The 
amending  article  was  but  slightly  altered.  Before  final 
adjournment  the  convention  assumed  legislative  authority 
by  issuing  twelve  ordinances. 

Kentucky  in  revising  its  constitution  of  1850  increased 
its  length  from  nine  thousand  to  about  twenty-one  thousand 
words  through  the  insertion  of  the  usual  many  restrictions 
and  prohibitions  on  the  legislature,  by  greatly  enlarging 
the  articles  on  Suffrage  and  Elections,  and  by  adding  many 
provisions  in  respect  to  local  government,  revenue,  taxa- 
tion, railroads  and  corporations.  The  November  election 
and  the  item  veto  were  adopted,  and  registration  and  the 
secret  ballot  in  elections.  The  method  of  amendment  and 
revision  was  made  somewhat  easier.  The  constitution  was 
approved  on  referendum  and  was  then  promulgated  Sep- 
tember twenty-eighth,  1891,  on  the  authority  of  the  con- 
vention, after  some  slight  changes. 

South  Carolina  held  a  convention  for  revision  purposes 
from  September  tenth  to  December  fourth,  1895,  and  pro- 
mulgated its  constitution  without  referendum.  This  con- 
vention also  used  legislative  authority  by  issuing  twelve 
ordinances.  The  length  of  the  constitution  was  increased 
by  about  seven  thousand  words  over  its  predecessor,  the 
reconstruction  constitution  of  1868.  From  the  Declara- 
tion of  Rights  were  dropped  the  sections  concerning  slavery, 
secession,  and  paramount  allegiance,  and  lengthy  additions 
were  made  to  the  article  on  Suffrage,  placing  restrictions 
on  the  exercise  of  this  right.  November  elections,  January 
sessions,  and  the  item  veto  were  inserted,  with  the  usual 
restrictions  on  the  legislature  and  the  wordy  lengthening 
of  the  article  on  Corporations.  The  amending  process  was 


RECENT  CHANGES 


93 


slightly  modified  but  still  demanded  a  difficult  procedure 
for  changes  in  the  fundamental  law. 

Louisiana  in  1879  had  revised  its  constitution  and 
lengthened  it  out  of  all  proportion,  but  the  convention  of 
1898  nearly  doubled  its  length,  promulgating  on  its  own 
authority  a  constitution  of  about  forty  thousand  words. 
The  convention  devoted  itself  largely  to  the  article  on 
Suffrage  and  Elections,  which  was  increased  by  nearly  two 
thousand  words ;  and  to  the  working  out  of  interminable 
articles  on  the  judiciary,  legislative  restrictions,  local  gov- 
ernment (paying  especial  attention  to  New  Orleans), 
numerous  boards  of  administration,  and  on  the  state's 
economic  problems  in  respect  to  taxes,  debts,  pensions, 
roads,  railroads,  river-banks,  and  agriculture.  Naturally, 
with  so  detailed  and  lengthy  a  constitution,  a  simple 
method  of  amendment  had  to  be  provided.  The  conven- 
tion promulgated  its  constitution  without  referendum. 

Since  that  time  every  session  of  the  legislature  has  re- 
sulted in  a  crop  of  amendments,  nearly  a  hundred  in  all, 
until  an  impasse  developed  in  1913  owing  to  the  necessity  of 
making  a  new  arrangement  in  respect  to  the  funding  of 
the  bonded  debt  of  the  state.  A  referendum  was  sub- 
mitted, September  eighth,  calling  for  a  convention  for  this 
specified  purpose,  and  on  an  affirmative  vote,  the  conven- 
tion met,  November  tenth-twenty-second,  added  a  two 
thousand  word  Article  (number  324)  in  respect  to  the 
funding  of  the  debt,  incorporated  previously  adopted 
amendments  into  the  constitution,  and  adjourned  after 
promulgating  it  without  referendum.  The  constitution  is 
a  pamphlet  of  one  hundred  twenty-eight  pages  and  con- 
tains from  forty-five  thousand  to  fifty  thousand  words. 

Aside  from  the  new  funding  article  the  interesting 
changes  are:  (i)  Article  118  on  Juvenile  Courts  (about 


94  AMERICAN  STATE  CONSTITUTIONS 

twenty-four  hundred  words),  adopted  1908,  and  (2)  the 
continuation  of  the  "  grandfather  clause,"  by  amendment 
of  1912.  This,  however,  is  not  contained  in  the  present 
constitution  in  words,1  but  must  be  followed  back  to  the 
constitution  of  1898.  For  the  revised  constitution  is, 
unfortunately,  not  complete  in  itself,  since  it  provides 
in  the  sixth  paragraph  of  its  Schedule  that, 

The  Constitution  of  this  State,  adopted  in  1898,  and  all  amend- 
ments thereto,  are  declared  to  be  superseded  by  this  Constitution. 
But  the  omission  from  this  Constitution  of  any  Article  of  the  Con- 
stitution of  1898  and  the  amendments  thereto  or  of  any  other  existing 
Constitutional  provision  shall  not  amount  to  the  repeal  thereof, 
unless  the  same  be  inconsistent  with  this  Constitution. 

Alabama.  In  1901  this  state  held  a  convention  which 
added  about  ten  thousand  words  to  the  constitution  of 
1875.  The  convention  adjourned  September  third  and 
referred  the  constitution  to  the  voters,  who  November 
eleventh  endorsed  it  at  the  polls.  The  revised  constitution 
dropped  from  the  Declaration  of  Rights  section  thirty-five 
against  secession,  changed  the  election  month  to  Novem- 
ber, provided  for  a  quadrennial  election  and  legislative 
session,  added  two  years  to  the  governor's  term  of  office, 
and  devoted  some  three  thousand  words  to  the  article  on 
Suffrage  and  Elections,  restricting  the  voting  privilege,  and 
refusing  suffrage  to  "intention"  voters  not  yet  citizens  of 
the  United  States.  As  usual  in  this  period  many  limita- 
tions were  placed  on  the  legislature,  and  the  article  on  Cor- 
porations was  much  enlarged.  The  amending  process  was 
made  simpler  and  the  paragraphs  of  the  constitution  num- 
bered consecutively.  An  interesting  addition  was  made  to 
the  section  (286)  on  constitutional  conventions,  which  reads ; 
"provided,  nothing  herein  contained  shall  be  construed 

1  See  Article  197,  Section  5. 


RECENT   CHANGES  95 

as  restricting  the  jurisdiction  and  power  of  the  conven- 
tion, when  duly  assembled  in  pursuance  of  this  section, 
to  establish  such  ordinances  and  to  do  and  perform  such 
things  as  to  the  convention  may  seem  necessary  or  proper 
for  the  purpose  of  altering,  revising  or  amending  the  existing 
Constitution." 

Virginia  in  1902  held  a  convention  which  revised  its 
short  reconstruction  constitution  by  adding  to  it  about 
fifteen  thousand  words.  The  constitution  was  promul- 
gated July  tenth  on  the  authority  of  the  convention,  with- 
out referendum.  From  the  Bill  of  Rights  it  dropped  the 
slavery,  secession  and  paramount  allegiance  clauses  and 
also  Section  twenty,  which  declared  that  all  citizens  of  the 
state  should  "  possess  equal  civil  and  political  rights  and 
political  privileges."  The  constitution  of  1870  had  pro- 
vided (Article  VII),  "That  no  amendment  or  revision  shall 
be  made  which  shall  deny  or  in  any  way  impair  the  right 
of  suffrage,  or  any  civil  or  political  right  as  conferred  by 
this  Constitution,  except  for  causes  which  apply  to  all 
persons  and  classes  without  distinction."  Whatever  bind- 
ing effect  such  a  proviso  might  have  on  a  legislature,  it 
restricts  in  no  way  a  convention  voicing  the  sovereign  will 
of  the  people.  At  any  rate  the  two  thousand  word  article 
on  the  Elective  Franchise  in  the  new  constitution  managed 
to  place  some  rigorous  restrictions  on  "equal"  suffrage. 
In  addition,  the  convention  placed  limitations  on  the  legis- 
lature, gave  the  governor  the  item  veto,  enlarged  Local 
Government,  and  Taxation  and  Finance,  by  some  two 
thousand  words  each,  and  inserted  a  six  thousand  word 
article  on  Corporations,  which  later  was  largely  copied  by 
the  Oklahoma  convention  of  1907.  The  difficult  amending 
and  revising  procedure  of  the  old  constitution  was  retained, 
except  that  the  provision  was  dropped  which  required  a 


96  AMERICAN  STATE   CONSTITUTIONS 

referendum    every    twenty    years    on    the    calling    of    a 
convention. 

REVISED  AND  AMENDED  CONSTITUTIONS  IN  THE  NORTH 

In  addition  to  these  six  revisions  in  the  south,  four 
others  in  the  north,  omitting  New  England,  should  be 
mentioned  with  some  detail. 

New  York  after  the  fiasco  of  1867  continued  to  worry 
along  with  its  constitution  of  1846,  amending  it  from  time 
to  time  as  best  could  be  done.  Finally  a  convention  was 
summoned  in  1894  which,  September  twenty-ninth,  sub- 
mitted to  the  voters  a  constitution  which  was  ratified 
November  sixth.  The  constitution  was  carefully  revised, 
article  by  article,  and  many  changes  in  detail  made  but  few 
in  general  principle.  In  length  the  new  constitution  did 
not  vary  much  from  the  older  document  with  its  amend- 
ments. The  membership  of  both  houses  of  the  legislature 
was  enlarged,  and  a  reapportionment  ordered  to  be  made 
after  each  state  census.  The  judicial  system  received  special 
attention  and  provisions  were  made  for  civil  service  rules, 
the  classification  of  cities  and  for  a  state  board  of  charities. 
The  method  of  amendment  was  slightly  modified  but  left 
practically  as  before.  In  1901  by  amendment  additional 
limitations  were  placed  on  the  legislature,  and  in  1907  a 
modification  of  the  section  respecting  the  classification  of 
cities.  In  April  of  1914  by  a- close  vote  on  referendum  a 
convention  was  ordered  for  the  revision  of  the  constitution 
in  1915. 

Delaware  in  1897  revised  its  short  and  ancient  constitu- 
tion of  1831,  almost  doubling  it  in  length.  The  convention 
adjourned  June  4,  1897,  after  promulgating  the  constitution 
without  referendum.  The  convention  surely  would  never 
be  accused  of  radicalism'.  It  was  distinctly  "  conservative  " 


RECENT  CHANGES 


97 


in  the  changes  made.  The  legislative  districts  of  the 
state  were  specified  in  detail,  on  an  undemocratic  basis, 
and  no  provision  made  for  reapportionment.  Naturally 
there  are  lengthy  provisions  aimed  at  bribery  and  cor- 
ruption, in  a  three  thousand  word  article  on  (Suffrage 
and)  Elections.  Voters  were  required  to  pay  a  fee  of  one 
dollar  on  registering  and  the  ability  to  read  and  write  was 
required.  The  governor  was  given  the  veto  power  includ- 
ing the  item  veto,  and  short  new  articles  were  inserted  on 
corporations,  agriculture,  local  option  and  health.  The 
amending  and  revising  process  was  made  slightly  easier, 
but  amendments  can  originate  only  in  the  legislature,  and 
must  pass  two  successive  legislatures  by  a  two-thirds  vote 
of  both  houses.  Delaware  is  the  only  state  in  the  Union 
that  does  not  submit  its  amendments  on  referendum  for 
approval  or  rejection. 

v  Michigan  after  many  vain  attempts  to  amend  and  revise 
its  ancient  constitution  of  1850,  managed,  April  2,  1906, 
to  secure  a  referendum  vote  ordering  a  convention.  This 
body  completed  its  labors  February  twenty-first,  1908,  and 
the  conservatively  revised  constitution  submitted  was 
ratified  at  the  polls  in  November.  The  older  constitution 
had  a  one  line  enacting  clause  but  no  preamble  nor  a 
formal  bill  of  rights.  The  new  constitution  contains  a 
preamble  of  the  usual  type  and  a  Declaration  of  Rights  of 
twenty-one  sections.  Eminent  Domain  was  omitted  from 
this  and  treated  in  a  separate  article.  Elective  Franchise 
is  brought  to  the  front  as  Article  III,  taking  the  place  of 
Elections  in  the  former  constitution.  The  article  on  State 
Officers  was  omitted,  and  its  provisions  placed  under  the 
Executive  Department.  Among  the  changes  made  may 
be  noted  the  addition  to  the  governor's  powers  of  the  item 
veto,  the  omission  of  a  state  census,  and  significant  changes 


98  AMERICAN  STATE  CONSTITUTIONS 

in  legislative  procedure  such  as  the  omission  of  a  time 
limit  on  the  initiation  of  bills,1  ordering  the  printing  of 
bills  at  least  five  days  before  passage,  the  insertion  of  a 
provision  for  a  legislative  yea  and  nay  vote  on  the  demand 
of  one  fifth  the  membership,  a  prohibition  forbidding  either 
house  to  " adopt  any  rule  that  will  prevent  a  majority  of 
the  members  elected  from  discharging  a  committee  from 
the  further  consideration  of  any  measure,"  and  a  pro- 
hibition against  the  passage  of  any  local  or  special  act 
when  a  general  act  can  be  made  applicable.  Salaries  for 
the  governor,  members  of  the  legislature,  and  certain  other 
officers  were  increased,  some  minor  changes  were  made  in 
the  articles  on  the  Judicial  Department,  and  taxpaying 
women  were  given  a  vote  on  financial  referenda.  The 
most  important  change  was  in  Local  Government  (Article 
VIII).  Laws  in  regulation  of  cities  and  villages  are  to  be 
general,  and  home  rule  charters  and  local  control  over 
franchises  secured.  To  the  amending  article  a  constitu- 
tional initiative  provision  was  added,  but  authorizing  the 
legislature  in  its  discretion  to  veto  initiated  measures  or  to 
submit  an  alternative.  This  provision  came  as  a  com- 
promise after  a  four  days'  debate  and  in  April,  1913,  was 
modified  by  amendment.  The  older  provision  was  un- 
workable, but  the  amendment  gave  a  definitely  popular 
basis  to  the  initiative.  The  older  amending  process  was  con- 
tinued practically  as  before,  except  that  the  powers  of  future 
conventions  were  defined  so  as  to  free  them  from  improper 
legislative  restrictions.  The  constitution  was  not  materi- 
ally lengthened  in  revision  and  was  distinctly  improved, 
though  not  radically  altered,  by  the  few  changes  made. 

1  The  original  constitution  forbade  new  bills  within  the  last  three  days 
of  the  session.  This  was  amended  in  1860  so  as  to  prohibit  new  bills  after 
the  first  fifty  days  of  the  session. 


RECENT  CHANGES  99 

Ohio.  The  constitution  of  1851  was  difficult  of  amend- 
ment or  revision  owing  to  the  necessity  of  securing  on 
referendum  "a  majority  of  all  the  electors  voting  at 
said  election."  So  difficult  became  the  amending  process 
with  passing  years  that  an  affirmative  action  could  be 
obtained  only  by  the  somewhat  shady  device  of  omitting 
from  the  ballot  the  "no"  of  the  "yes,"  "no,"  placed 
after  the  referendum,  so  that  ignorant  voters  who  voted 
on  the  amendment  would  vote  affirmatively.  Political 
parties  even  were  authorized l  to  make  an  amendment 
part  of  their  tickets,  so  that  voters  of  straight  party 
tickets  might  approve  such  amendments  by  placing  the 
cross  in  the  circle  under  the  party  emblem.  By  means  of 
this  latter  device,  and  the  omission  of  the  "no"  on  the 
ballot,  a  convention  was  finally  authorized  and  held  1912. 
This  body  submitted  to  the  voters  at  a  special  election, 
September  third,  1912,  forty- two  separate  propositions  as 
the  result  of  its  labors.  Fortunately  for  the  convention 
the  constitution  provided  that  such  amendments  might  be 
approved  by  a  "majority  of  those  voting  thereon."  Eight 
only  of  the  propositions  were  rejected,  so  that  thirty-four 
important  changes  became  part  of  a  revised  constitution. 
One  of  the  chief  demands  for  a  convention  came  from  a 
desire  to  modify  or  abolish  the  old  taxation  provision 
"taxing  by  a  uniform  rule."  On  this  matter  however  the 
convention  could  not  agree  and  compromise  amendments 
were  submitted,  retaining  the  old  principle  but  modifying 
it  somewhat  by  exceptions. 

The  propositions  adopted  are  too  numerous  to  specify 
in  this  place,2  but  involved  modifications  in  legislative  and 

lfThe  Longworth  Act,    1902-08.     See    Constitutional   Conventions  of 
Ohio,  by  C.  B.  Galbreath,  pp.  44-47. 
2  See  references  given  at  end  of  chapter. 


ioo          AMERICAN  STATE   CONSTITUTIONS 

judicial  procedure,  and  in  the  organization  and  powers  of 
these  departments  of  government.  They  modified  some- 
what the  governor's  veto,  legislated  in  behalf  of  labor 
interests  and  the  conservation  of  natural  resources,  im- 
proved electional  methods,  secured  municipal  home  rule, 
reorganized  the  taxing  system,  provided  for  a  carefully 
regulated  liquor  license  system,  and,  so  far  from  lengthen- 
ing the  brief  article  on  Corporations,  reduced  it  in  size. 
The  recommendations  in  respect  to  amendment  and  re- 
vision avoided  the  blunder  of  the  earlier  convention  and 
made  the  constitution  flexible  by  a  simple  procedure  and 
the  requirement  of  a  "majority  of  those  voting  thereon" 
for  both  revision  and  amendments.  The  most  important 
of  the  rejected  recommendations  were;  women's  suffrage, 
the  abolishment  of  capital  punishment,  and  provision  for 
the  issuance  of  bonds  for  a  state  roads  system. 

THE  NEW  ENGLAND  STATES 

Movements  for  constitutional  revision  have  been  promi- 
nent in  four  of  the  six  New  England  States.  New  Hamp- 
shire, which  has  no  process  of  amending  through  the  legis- 
lature, but  submits  every  seven  years  a  referendum  in 
respect  to  the  calling  of  a  convention,  has  held  during  this 
period  three  conventions.  By  constitution  each  conven- 
tion is  to  be  "  proportioned  as  the  representatives  to  the 
general  court"  (the  legislature),  and  recommendations  must 
secure  a  two- thirds  vote  on  referendum.  As  the  state  now 
has  the  preposterous  number  of  four  hundred  and  six 
members  in  its  house  of  representatives,  conventions  are 
entirely  too  unwieldy  to  do  careful  and  effective  work. 
Then,  too,  a  referendum  vote  of  two-thirds  majority  is 
exceedingly  hard  to  obtain  on  any  really  important  recom- 
mendation, so  that  few  amendments  of  any  consequence 


RECENT  CHANGES  TOJ 

ever  receive  the  requisite  endorsement  at  the  polls.  In 
1889  seven  amendments  were  submitted,  ten  in  1902,  and 
twelve  in  1912.  The  first  set  was  unimportant  except  for 
a  prohibition  amendment.  This  and  one  other  were  re- 
jected and  the  others  accepted.  Six  of  the  set  of  1902 
were  rejected  and  four  accepted.  These  four  included  an 
educational  qualification  for  suffrage,  taxes  on  inheritances 
and  franchises,  and  an  anti-trust  provision.  The  chief 
provisions  rejected  called  for  women's  suffrage  and  a  much 
needed  reduction  in  the  membership  of  the  house.  Of  the 
set  of  1912  1  eight  were  rejected  and  four  adopted.  The 
only  one  of  consequence  among  those  accepted  provided 
for  plurality  instead  of  majority  elections.  Those  rejected 
involved  a  readjustment  of  membership  in  both  houses, 
and  recommendations  in  respect  to  taxation,  corporations, 
pensions,  and  the  item  veto  for  the  governor.2 

Rhode  Island.  This  State  in  1888  by  amendment  had 
relaxed  somewhat  its  suffrage  laws  by  allowing  naturalized 
citizens  who  owned  no  real  estate  a  vote  in  state  elections 
and  a  modified  vote  in  local  elections,  and  in  1893  it  adopted 
plurality  instead  of  majority  elections.  Yet,  as  dissatis- 
faction at  political  conditions  increased  rather  than  lessened, 
the  general  assembly  in  1897  authorized  the  governor  to 
appoint  a  commission  of  fifteen  persons  to  report  a  revision 
of  the  constitution.  This  body  was  seriously  handicapped 
from  the  fact  that  any  revision  recommended  would  have 
to  meet  with  the  approval  of  two  successive  legislatures. 

1  For  brief  discussion  of  this  convention,  see,  American  Political  Science 
Review,  VII.  i.  pp.  133-7. 

2  Parturiunt  monies  nascetur  ridiculus  mus,  Horace.     Over   four  hun- 
dred delegates  had  been  in  session  from  June  fifth-twenty-second  at  heavy 
expense  to  the  state,  with  printing  and  electional  expenses  in  November, 
but  with  no  result  at  all  commensurate  with  the  energy  and  expenditure 
involved. 


jo.          •AMEKIpAtf.  STATE  CONSTITUTIONS 

Its  recommendations  in  consequence  were  conservative  to 
the  last  degree.  The  revision  proposed  passed  the  legis- 
latures without  change,  but  was  rejected  at  the  polls 
November,  1898.  This  result  was  far  from  satisfactory  to 
the  party  in  power,  which  had  the  revision  repassed  with  a 
few  verbal  changes  and  again  referred  June,  1899,  but  it 
was  rejected  by  a  larger  adverse  vote  than  before.  In  1912 
another  commission  of  nine  persons  was  appointed  to  report 
a  revision  and  submitted  a  report,  I9I5.1  Certain  recom- 
mendations of  the  first  revision  have  since  been  passed 
separately,  by  the  amending  process,  including  modifica- 
tions in  the  judicial  system,  in  the  house  representation, 
giving  to  the  governor  a  weak  veto  power,  and  providing 
for  a  biennial  instead  of  an  annual  election,  though  retain- 
ing the  annual  session  of  the  assembly. 

Connecticut  has  in  its  constitution  a  difficult  amending 
process  and  no  provision  for  a  convention.  In  1901  the 
legislature  under  its  general  powers,  after  a  referendum, 
summoned  a  convention  but  handicapped  it  by  placing 
limitations  on  its  powers  and  by  having  its  membership 
based  on  the  towns,  irrespective  of  population.  The  con- 
stitution prepared  made  no  alterations  of  real  value  and 
made  so  little  concession  to  the  urban  centers  in  represen- 
tation, that  at  the  polls  when  referred  in  June,  1902,  it  was 
indignantly  rejected.  In  1905  the  legislature  submitted  as 
an  amendment  a  revised  constitution,  which  made  no 
material  modifications  of  any  sort,  merely  incorporating 
the  amendments  since  1828  into  the  main  body  of  the  con- 
stitution and  increasing  the  salaries  of  the  members  of  the 
legislature.  This  revision  also  was  rejected,  November 
1907.  Since  1886  eight  amendments  in  all  have  been 
adopted,  the  chief  of  which  provided  for  plurality  instead 

1  See,  chap.  xix. 


RECENT  CHANGES  103 

of  majority  elections,  increased  the  membership  of  the 
senate,  and  placed  a  time  limit  on  the  sessions  of  the 
assembly. 

Vermont.  This  State  under  its  constitution  as  amended 
in  1870  considers  propositions  for  amendments  at  ten-year 
intervals,  employing  a  most  difficult  procedure.  In  1880 
twenty-three  proposals  were  considered,  but  two  only, 
both  of  small  importance,  were  passed.  In  1890  nine  pro- 
posals were  considered,  but  none  was  passed.  The  same 
fate  befell  four  amendments  offered  in  1900.  In  1908  by 
joint  resolution  a  commission  of  five  was  appointed  to  pro- 
pose amendments  to  the  constitution.  The  commission 
made  in  January  1910  a  careful  report  embodied  in  eight 
proposals,  and  submitted  a  copy  of  the  constitution  so 
arranged  as  to  include  in  the  main  body  all  former  amend- 
ments. Five  of  these  proposals  were  in  substance  accepted 
by  two  successive  assemblies  and  by  the  voters  in  1913, 
becoming  thereby  part  of  the  constitution.  These  included 
a  strengthening  of  the  governor's  veto  power,  the  adoption 
of  the  November  election  and  the  January  session,  and 
restrictions  on  special  and  local  legislation.  In  place  of  the 
rearrangement  of  the  constitution  proposed  by  the  com- 
mission a  substitute  was  passed  as  an  amendment  authoriz- 
ing the  justices  of  the  supreme  court  to  perform  this  task. 
These  reported  in  September  a  remodeled  constitution 
which  thereby  became  the  constitution  of  the  state,  super- 
seding the  ancient  document  of  1793  with  its  amendments 
of  one  hundred  twenty  years.  In  addition  to  these  pro- 
posals submitted  by  the  commission  seven  others  were 
introduced  into  the  senate  but  two  unimportant  ones  only 
passed  the  ordeal  of  the  approving  vote  of  two  assemblies 
and  of  the  electorate. 

The  other  two  New  England  states  during  this  period 


104          AMERICAN  STATE   CONSTITUTIONS 

have  confined  themselves  to  amendments,  the  most  im- 
portant of  which  are  the  following.  Massachusetts  in  1892 
removed  from  the  governorship  its  property  qualification, 
permitted  in  1911  the  use  of  voting  machines,  and  in  1913 
permitted  the  legislature  to  refer  legislative  measures  to 
the  electorate.  Maine  in  1892  adopted  an  educational 
qualification  for  voting  and  adopted  1908,  the  statutory 
initiative  and  referendum. 

CHANGES  IN  OTHER  STATES 

Indiana.  The  constitution  of  this  state  dates  from  1851 
and  contains  no  provision  for  a  convention.  The  amend- 
ing process  requires  the  action  of  two  assemblies  and 
"a  majority  of  the  electors  of  the  state."  In  consequence 
of  this  stringent  requirement,  few  amendments  have  ever 
been  passed.  In  1900  a  petty  amendment  in  respect  to 
admissions  to  the  bar  was  voted  on  at  referendum  and 
failed  to  receive  a  legal  majority.  Later,  the  supreme 
court  held  that  under  the  constitution  no  further  amend- 
ments could  be  submitted  until  the  amendment  was 
definitely  adopted  or  rejected.  In  consequence,  the  amend- 
ment was  submitted  once  more  in  1906,  and  again  in  1910, 
but  aroused  so  little  interest,  that  it  failed  to  carry.  The 
supreme  court  then  modified  its  decision  so  as  to  permit  of 
the  submission  of  other  amendments.  In  view  of  this  condi- 
tion, Governor  Marshall,  now  Vice  President,  having  a 
democratic  legislature,  in  February,  1911,  had  prepared  a 
revised  constitution  for  the  state.  This  was  submitted  to 
a  party  caucus  for  modification  and  endorsement,  and  then 
introduced  into  the  legislature  for  enactment,  under  the 
theory  that  the  general  powers  of  the  lawmaking  body 
allowed  it  to  submit  a  constitution  to  the  voters  on  referen- 
dum. Within  three  weeks  the  constitution  was  passed  by 


RECENT  CHANGES  105 

the  legislature,  signed  by  the  governor,  and  referred  to  the 
voters  at  the  November  election.  In  view  of  the  difficulty 
of  getting  a  proper  vote  on  amendments  of  any  sort  a 
statute  was  also  passed,1  modeled  after  the  Longworth  Act 
of  Ohio,2  providing  that  pending  amendments  might  be 
endorsed  by  political  parties,  so  that  straight  ticket  votes 
would  count  towards  the  passage  of  an  amendment.  The 
legality  of  the  submission  of  the  revised  constitution  having 
come  before  the  supreme  court,  it  held  (July  fifth)  that  the 
legislative  constitution  had  been  illegally  submitted. 
Finally  the  legislature  of  1913,  March  fifteenth,  under  its 
general  powers,  voted  to  submit  to  the  voters,  in  November 
1914,  a  referendum  as  to  whether  a  convention  to  revise 
the  constitution  shall  be  summoned.  At  the  polls  this 
referendum  was  negatived,  since  by  requirement  the  refer- 
endum had  to  be  approved  by  a  majority  of  all  votes  cast 
at  the  general  election. 

Oregon.  The  constitution  of  1857  was  in  general  modeled 
after  the  constitution  of  Indiana  (1851),  but  unfortunately 
it  copied  almost  verbatim  the  amending  article,  so  that  for 
fifty  years  the  state  found  it  impossible  to  pass  amend- 
ments, owing  to  the  stringent  requirements  of  the  con- 
stitution. Finally  in  1902  the  first  amendment  was 
passed,  an  amendment  revolutionary  in  character,  since 
it  provided  for  the  constitutional  initiative  and  referen- 
dum. At  once  it  became  possible  to  amend  the  constitu- 
tion by  this  easier  procedure,  so  that  the  succeeding  years 
have  seen  many  attempts,  successful  or  otherwise,  to  make 
up  for  lost  time  in  modernizing  the  constitution.  From 
1904-14  inclusive,  sixty- three  amendments  have  been  acted 
on  and  twenty-three  of  these  affirmatively.  The  conse- 
quence is  that  the  constitution  has  gone  through  a  sort  of 

1  Chapter  219.  laws  1911.  2  See,  p.  99. 


io6          AMERICAN  STATE   CONSTITUTIONS 

revision,  though  there  is  still  room  for  improvement.  As  is 
well  known,  the  success  of  the  "  Oregon  plan  "  has  stimu- 
lated a  great  movement  among  the  states,  ushering  in 
virtually  a  new  era  in  the  amending  and  revising  of  con- 
stitutions. 

In  Oregon  the  chief  measures  introduced  into  the  con- 
stitution by  these  devices  are  as  follows  :  —  The  initiative 
and  referendum  feature  has  been  made  complete,  applying 
to  revision  through  convention,  to  amendments,  to  statutes 
or  parts  of  statutes  and  to  all  forms  of  local  laws.  It  has 
been  supplemented  by  the  recall,  applying  to  every  elective 
office  in  the  state.  A  large  amount  of  home  rule  has  been 
secured  to  city  and  county,  including  a  partial  control 
under  regulation  over  their  franchises,  taxes,  and  debts. 
The  judiciary  article  has  been  revised,  including  modifica- 
tions of  the  jury  system ;  women  have  been  granted  the 
suffrage,  " intention"  voting  abolished,  proportional  repre- 
sentation made  permissive,  elections  changed  from  June  to 
November,  prohibition  adopted,  and  the  poll  tax  abolished. 
These  amendments  unitedly  have  not  materially  lengthened 
the  constitution  which  contains  about  eleven  thousand 
words. 

The  State  of  California  in  amending  was  not  handicapped 
by  any  constitutional  provision,  since  amendments  may  be 
passed  by  the  usual  procedure  of  a  two-thirds  vote  in  the 
legislature  and  a  referendum  vote  of  a  majority  of  those 
voting  thereon.  During  the  first  twenty-five  years  of  the 
existence  of  the  constitution  of  1879  twenty-seven  amend- 
ments were  passed,  none  of  them  of  an  especially  radical 
nature.  But  during  the  eight  following  years,  ending  with 
1912,  fifty-six  amendments  are  listed  in  the  revised  con- 
stitution of  1914,  many  of  which  embody  the  newer  radical- 
ism of  the  times;  nearly  half  of  these  amendments  were 


RECENT  CHANGES  107 

passed  at  the  special  election  of  1911  and  these  chiefly 
embodied  the  radical  and  lengthy  additions  to  the  constitu- 
tion. For,  the  amendments  of  the  last  eight  years  are  in 
some  cases  not  brief,  general  provisions,  but  detailed  statutes 
inserted  bodily  into  the  constitution.  The  eighty-three 
amendments  combined  have  added  about  thirteen  thousand 
words  to  the  constitution,  making  a  total  of  nearly  thirty- 
two  thousand  words.  Eighteen  of  these  amendments 
concern  the  Judicial  Department,  all  passed  since  1904: 
twenty  are  under  the  heading  of  Counties,  Cities  and 
Towns;  sixteen  are  under  the  heading  of  Revenue  and 
Taxation;  seven  under  Corporations,  all  dating  from  1908, 
and  seven  are  under  Education. 

In  enumerating  the  chief  additions  made  to  the  constitu- 
tion, it  may  be  said  that  the  most  striking  series  of  changes 
consists  in  the  many  provisions  for  the  use  of  the  initiative 
and  referendum  for  constitutional  and  statutory  law  and 
local  ordinances.  This  is  supplemented  by  the  recall, 
applying  to  every  elective  officer,  including  the  judiciary. 
Women  are  granted  the  suffrage  on  the  same  terms  as  men, 
and  radical  primary  laws  demanded.  In  local  government 
home  rule  is  secured  to  cities  and  counties.  Provision  is 
made  for  a  split  legislative  session,  with  the  hope  of  elimi- 
nating the  rush  period  common  at  the  end  of  a  legislative 
session,  and  for  larger  salaries  for  members  of  the  legisla- 
ture and  for  the  governor  and  other  chief  administrative 
officers  of  the  state.  The  important  economic  provisions 
provide  for  a  railroad  commission  in  charge  and  regulation 
of  all  public  utilities,  a  revision  of  the  taxing  system  as 
applied  to  quasi-public  corporations,  banks  and  insurance 
companies,  a  prohibition  of  stock  gambling  and  of  poll  taxes, 
and  provisions  for  employers'  liability,  the  minimum  wage, 
and  the  safeguarding  of  the  exercise  of  eminent  domain 


io8          AMERICAN  STATE   CONSTITUTIONS 

powers.  The  amendments  on  education  include  provisions 
for  free  text  books,  prepared  and  printed  by  the  state,  and 
Section  twenty-four  (Article  IV)  makes  .careful  provision 
for  the  charities  of  the  state. 

Changes  so  fundamental  as  these  emphasize  the  im- 
portance of  the  study  of  state  constitutions,  seeing  that  a 
state  so  inclined  may  within  a  very  few  years  profoundly 
revolutionize  not  only  its  constitutional  system  and  political 
organization,  but  even  to  a  quite  large  extent  its  economic 
and  social  life.  By  modifications  in  their  fundamental  law 
the  citizens  of  states  like  Oregon  and  California,  whether 
for  good  or  for  bad,  have  their  destiny  in  their  own  hands, 
in  marked  contrast  to  conditions  in  such  states  as  Indiana, 
Delaware  and  Rhode  Island,  where  the  citizens  are  held 
gripped  by  the  "dead  hands"  of  antiquated  fundamental 
law. 

THE  NEW  STATES 

Since  1886  ten  new  states  have  been  added  to  the  Union, 
completing  the  statehood  of  all  the  national  territory  except 
Alaska,  Porto  Rico,  Hawaii,  the  Philippine  Islands,  and  other 
minor  possessions.  On  February  twenty-second,  1889,  an 
enabling  act  of  congress  authorized  conventions  for  the  prepa- 
ration of  constitutions  for  four  prospective  states;  North 
and  South  Dakota,  Montana,  and  Washington.  These 
several  conventions  met  July  fourth  in  their  several  capitals, 
and  prepared  and  submitted  constitutions,  which  in  each  case 
were  ratified.  Acts  were  then  passed  by  Congress  admit- 
ting these  territories  as  states  :  on  November  second,  North 
and  South  Dakota ;  November  eighth,  Montana ;  Novem- 
ber eleventh,  Washington.  Meanwhile,  Idaho  and  Wyo- 
ming, envious  of  the  superior  lot  of  their  sister  territories, 
on  their  own  initiative  held  conventions,  adopted  constitu- 
tions, and  then  submitted  these  to  congress  with  petitions 


RECENT   CHANGES  109 

for  admission  to  the  Union.  After  some  delay  congress 
assented  to  these  requests  and  they  were  admitted  - 
Idaho,  July  third,  and  Wyoming  July  tenth,  1890.  Utah, 
owing  to  questions  arising  through  Mormonism,  was  not 
admitted  with  the  other  territories,  but  after  these  troubles 
had  been  settled,  congress,  July,  1894,  authorized  it  to 
prepare  a  constitution.  This  was  prepared  in  the  Spring 
of  1895,  ratified  in  November,  and  Utah  admitted  as  a 
state  January  fourth,  1896.  In  1890  the  new  territory  of 
Oklahoma  was  formed  from  part  of  the  lands  included  in 
the  Indian  Territory.  By  1905  both  of  these  territories  were 
eager  for  statehood  and  the  latter  even  held  a  convention 
and  prepared  a  constitution  for  a  state  to  be  called  Sequoyah. 
But  in  1906  after  much  local  dissension  an  enabling  act  of 
about  five  thousand  words  authorized  the  two  territories 
to  hold  a  joint  convention  so  as  to  prepare  a  constitution 
for  a  state  combining  the  two  territories.  The  constitu- 
tion thus  prepared  was  ratified  September  17,  1907,  and 
after  some  delay,  due  to  the  radicalism  of  certain  provisions 
of  the  constitution,  the  state  was  proclaimed,  November 
sixteenth,  as  a  member  of  the  Union. 

In  the  same  enabling  act  which  authorized  Oklahoma  to 
hold  a  convention  an  additional  five  thousand  words 
authorized  the  territories  of  Arizona  and  New  Mexico  to 
form  a  joint  state.  This  decision  was  not  satisfactory  to 
them  since  they  each  desired  separate  statehood.  This 
difference  of  opinion  lasted  for  about  four  years  and  ended 
when  congress  June  20,  1910,  by  enabling  act,  authorized 
them  to  hold  separate  conventions  preparatory  to  state- 
hood. The  constitutions  were  prepared  and  duly  rati- 
fied 1  but  were  not  entirely  satisfactory  to  congress.  The 
constitution  of  Arizona  was  radical  in  its  provisions  and 

*New  Mexico,  January  21,  Arizona,  February  9,  1911. 


no  AMERICAN  STATE   CONSTITUTIONS 

included  a  state  wide  recall.  By  contrast  the  constitution 
of  New  Mexico  was  too  conservative,  since  amendment 
under  its  provisions  would  be  well  nigh  impossible.  Finally 
Arizona  was  instructed  to  omit  from  its  constitution  the 
recall  of  judges,  and  New  Mexico  to  make  its  amending 
process  more  flexible.  These  conditions  were  complied 
with  and  the  territories  were  then  admitted  as  states,  New 
Mexico  January  sixth,  Arizona  February  fourteenth,  1912. 
Once  admitted,  Arizona  promptly  asserted  her  right  to  deter- 
mine its  own  fundamental  law  by  submitting  in  April  as 
an  amendment,  the  recall  of  judges ;  this  was  ratified  at 
the  November  election,  becoming  thereby  a  part  of  the 
constitution. 

These  ten  constitutions  in  many  respects  show  a  marked 
similarity ;  barring  the  radical  features  of  the  constitutions 
of  Oklahoma  and  Arizona,  they  clearly  present  the  familiar 
aspects  of  the  average  constitution  of  the  modern  type. 
These  resemblances  are  largely  due  to  the  fact  that  their 
economic  systems  are  based  on  mining  and  agriculture ; 
to  the  influence  of  older  neighboring  states  under  similar 
environment,  and  especially  are  they  largely  due  to  the 
numerous  well-defined  demands  of  congress  through  its 
enabling  acts.  From  the  beginning  these  territories  were 
under  congressional  authority.  Congressional  acts  deter- 
mined their  territorial  forms  of  government,  after  the 
democratic  type  lineally  descended  from  the  Ordinance  of 
1787,  and  congressional  enabling  acts  with  their  "  irrev- 
ocable compacts"  ensured  ample  guaranties  for  freedom, 
education,  and  a  democratic,  representative  system  of 
government.  So  powerful  has  been  the  democratic  in- 
fluence of  congress  in  reconstruction  and  in  the  formation 
of  states  out  of  territories,  that  one  might  almost  wish 
that  the  New  England  and  the  smaller  middle  states  would 


RECENT   CHANGES  in 

attempt  to  secede  from  the  Union,  so  that  congress  might 
have  the  pleasure  of  reconstructing  them  on  democratic 
lines,  as  interpreted  by  the  trend  of  the  last  twenty-five 
years.  These  states  themselves  would  benefit  from  the 
change  when  once  they  discovered  that  the  "icy  plunge" 
had  had  a  tonic  effect  in  freeing  political  systems  from 
antiquated  accretions  and  corrupt  bossism. 

In  general  these  ten  new  constitutions  start  with  a  com- 
bined preamble  and  enacting  clause,  insert  a  bill  or  declara- 
tion of  rights,  accept  (in  special  articles)  the  boundaries 
and  conditions  set  by  congress,  provide  for  the  threefold 
separation  of  powers,  specify  the  organization  and  powers 
of  each  of  these  three  departments,  varying,  naturally,  .in 
detail  somewhat,  yet  all  agreeing  that  many  limitations 
must  be  placed  on  the  legislature,  provide  for  biennial 
sessions  and  elections  and  for  the  election  (not  appoint- 
ment) of  the  chief  administrative  officers  and  judges  of  the 
state,  and  insert  articles  on  suffrage,  local  government, 
education,  the  militia,  impeachment,  mines,  corporations, 
and  the  many  other  subjects  that  now  regularly  find  place 
in  constitutions.  They  end  with  a  procedure  for  amend- 
ment and  revision,  and  a  schedule.  In  length,  omitting  the 
constitution  of  Oklahoma,  they  vary  from  sixteen  thousand 
to  twenty-one  thousand  words,  averaging  about  nineteen 
thousand.  Oklahoma's  constitution  has  almost  forty 
thousand  words,  and  if  Counties  and  County  Seats 1 
is  inserted,  ten  thousand  words  more  should  be  added. 
The  details  of  these  constitutions  will  be  given  in  con- 
nection with  the  chapters  of  Part  II  yet  in  respect  to  the 
three  newest  constitutions,  it  may  be  said  that  that  of  New 
Mexico  is  nearest  in  kind  to  those  of  the  other  western  states. 

1  Giving  county  boundaries  etc. ;  omitted  from  Thorpe's  collection,  but 
contained  in  the  original  constitution. 


ii2  AMERICAN  STATE   CONSTITUTIONS 

It  contains  a  mild  statutory  referendum  provision  and 
devotes  about  fourteen  hundred  words  to  Corporations  and 
a  Corporation  Commission.  Its  amending  process,  by 
congressional  injunction,  was  made  easy,1  except  that  cer- 
tain sections  safeguarding  the  rights  of  Spanish-speaking 
citizens  2  can  be  amended  only  by  special  votes  practically 
impossible  of  attainment.  The  constitution  of  Arizona 
contains  most  of  the  " latest  improvements"  in  the  form  of 
initiative  and  referendum,  recall,  primary,  municipal  home 
rule,  and  a  lengthy  article  (two  thousand  words)  on  Cor- 
porations. Its  amending  and  revising  processes  are  simple 
and  changes  in  the  constitution  can  be  made  with  ease. 
The  constitution  of  Oklahoma,  including  the  " County" 
section,  has  the  doubtful  honor  of  being  the  longest  state 
constitution  in  the  Union,  Louisiana  being  a  close  second. 
The  document  as  a  whole  is  poorly  prepared,  loosely  thrown 
together,  and  is  filled  with  useless  detail.  There  was  some 
justification  for  this.  The  territory  had  been  but  lately 
organized,  its  population  had  gathered  from  every  state  in 
the  Union  and  was  far  from  homogeneous,  so  that  neces- 
sarily there  was  but  little  unity  in  the  territory  or  its  con- 
vention, based  on  common  traditions  and  interests.  The 
inclusion  of  the  Indian  Territory  into  the  new  state  com- 
plicated the  situation  by  the  mingling  of  differing  races 
and  the  confusion  of  standards  incident  thereto.  Party 
feeling  ran  high  and  there  was  much  rivalry  for  place  and 
power.  The  convention  lacking  unity  did  not  work 
together  easily  nor  quickly,  the  more  so  as  there  was  much 
dissatisfaction  at  some  of  the  conditions  placed  on  the  con- 
vention by  the  terms  of  the  enabling  act.  Its  intentions 

1  A  majority  of  each  house,  and  on  referendum  a  majority  of  those  voting 
thereon. 

2  Articles  VII,  1.3.;  XII,  8.  10. 


RECENT   CHANGES  113 

in  the  main  were  excellent,  and  no  one  surely  could  rightly 
accuse  its  members  of  conservatism.  The  constitution  in- 
cludes the  radicalism  of  the  far  west,  so  far  as  it  had 
developed  at  that  time  under  the  influence  of  the  "Oregon 
idea."  Distrust  of  the  legislature  was  plainly  in  evidence 
in  the  many  stringent  restrictions  placed  on  its  powers, 
and  in  the  severe  bribery  oath  required  from  its  members. 
Suspicions  of  gerrymandering  arise  from  the  undue  space 
given  to  definitions  of  legislative,  judicial,  and  county 
boundaries.  An  eight  thousand  word  article  on  Corpora- 
tions, largely  copied  from  Virginia's  constitution  was  in- 
serted. The  constitution  ends  with  a  three  thousand  word 
schedule  and  an  ill  considered  amending  article,  in  which 
for  amendments  is  required  "a  majority  of  all  the  electors 
voting  at  such  election." 

BIBLIOGRAPHY  FOR  PART  I 

ALDEN,  GEORGE  H.  New  Governments  West  of  the  Alleghanies 
before  1780.  Bulletin,  University  of  Wisconsin  (Economics, 
Political  Science,  History).  Volume  II,  i. 

California.  The  Establishment  of  State  Government  in  California 
(1846-1850),  by  C.  Goodwin.  New  York.  1914. 

CAMPBELL,  DOUGLAS.  The  Origin  of  American  Institutions.  Papers 
American  Historical  Association.  Volume  V,  pp.  165-186. 

CHANDLER,  J.  A.  C.  History  of  Suffrage  in  Virginia.  Johns  Hop- 
kins Series.  Volume  XIX. 

Federalist,  The.  (Edited  by  John  C.  Hamilton,  1866.  Philadelphia.) 
See,  its  Index,  under  States. 

HOUGH,  FRANKLIN  B.  Constitution  of  the  State  of  New  York, 
adopted  in  1846,  with  a  comparative  arrangement  of  the 
constitutional  provisions  of  other  States  classified  by  their 
subjects.  Prepared  under  the  direction  of  a  Committee  of 
the  New  York  Constitutional  Convention  of  1867.  Albany. 
1867. 

McKiNLEY,  ALBERT  E.  The  Suffrage  Franchise  in  the  Thirteen  Eng- 
lish Colonies  in  America.  University  of  Pennsylvania.  1905. 


ii4          AMERICAN.  STATE   CONSTITUTIONS 

Maryland.  State  Government  in  Maryland  (1777-1781),  by  B.  W. 
Bond.  Johns  Hopkins  Series.  Volume  XXII.  Maryland 
Constitution  of  1851,  by  J.  W.  Harry.  Johns  Hopkins 
Series.  Volume  XX.  (See  references  to  Maryland  also  at 
end  of  Chapter  VII.) 

Nebraska.  Some  Original  and  Peculiar  Features  of  the  Nebraska 
Constitution,  by  C.  S.  Lobingier.  Annals.  Volume  XV, 

PP.  433-437- 

TURNER,  FREDERICK  J.  Western  State  Making  in  the  Revolutionary 
Era.  American  Historical  Review.  Volume  I,  pp.  70-87 ; 
251-269. 

WILLOUGHBY,  W.  F.  State  Activities  and  Politics.  Papers  American 
Historical  Association.  Volume  V,  pp.  113-127  (1891).  Ter- 
ritories and  Dependencies.  (First  three  chapters.)  New 
York.  1905. 

SOME  COMMENTS  ON  RECENT  CONSTITUTIONS 

Alabama,  Virginia.  Two  New  Southern  Constitutions,  by  A.  E. 
McKinley.  Political  Science  Quarterly.  Volume  XVIII,  pp. 
480-511. 

Arizona,  New  Mexico.     New  States   and   Constitutions,  by  George 
W.  Wickersham.     Senate   Document   62,  62d   Congress,  ist 
session. 
Social  Principles  of  the  New  Constitutions,  by  A.  J.  McKelway. 

Survey.     Volume  XXV,  pp.  610-613. 
Louisiana.     Comparison   of   the   Constitutions  of   1898  and   1913, 

by  W.  O.  Hart.     Pamphlet.     New  Orleans.     1914. 
The  Suffrage  Clause  of  the  New  (1898)  Constitution  of  Louisiana, 
by  Amasa  M.  Eaton.     Harvard  Law  Review,  Volume  XIII,  4. 
Michigan.     American   Political   Science   Review,    by   J.    A.    Fairlie. 

Volume  II,  pp.  443-447  ;  Volume  IV,  pp.  119-123. 
Ohio.    The  Constitutions  of  Ohio  and  Allied  Documents,  by  Isaac 

F.  Patterson.     Cleveland.     1912. 
Constitutional    Conventions    of    Ohio,    by    C.    B.    Galbreath. 

Pamphlet,  63   pages.     Columbus.     1911. 
The  Fourth   Constitutional  Convention  of  Ohio.     By  H.  W. 

Elson.     Review  of  Reviews.     Volume  XLV,  pp.  337-340. 
Voting    Organic    Laws,    by    Robert    E.    Cushman.      Political 

Science  Quarterly.    June,  1913. 

The  Ohio  Constitution.    North  American  Review.    Volume  197, 
pp.  275-280. 


BIBLIOGRAPHY  FOR  PART  I  115 

American  Political  Science  Review.    Volume  VI,  pp.  573-576,  581- 

583- 

American  Political  Science  Review.     Volume  VII,  pp.  639-650. 
The  New  Constitution  of  Ohio,  by  F.  C.  Howe.    Survey.     Vol- 
ume XXVIII,  pp.  757-759. 
Oklahoma.    Constitution  of  Oklahoma,  by  Henry  G.  Snyder.    Kansas 

City.     1908. 
The  Constitution  of  Oklahoma,  by  Charles  A.  Beard.     Political 

Science  Quarterly.     Volume  XXIV,  pp.  96-114. 
REINSCH,  PAUL  S.    In  Readings  on  American  State  Government, 

see  Chapter  IX,  Constitutional  Conventions. 

South  Carolina.  The  Late  Constitutional  Convention  and  Con- 
stitution of  South  Carolina,  by  Amasa  M.  Eaton.  Volume  31, 
American  Law  Review. 

For  references  already  given  in  Part  I,  see : 

PAGE  PAGE 

Alden,  G.  H.  18  Hollis,  J.  P.  88 

Bondy,  W.  8  Jameson,  J.  A.  49 

Bryce,  J.  8  Jameson,  J.  F.  2 

Burgess,  J.  W.  88  MacDonald,  W.  21 

Chadsey,  C.  E.  88  Header,  L.  H.  31 

Davis,  W.  W.  88  Moran,  T.  F.  37 

Dodd,  W.  F.  24  Morey,  W.  C  9,  24 

Dunning,  W.  A.  88  Myers,  W.  S.  88 

Eckenrode,  H.  J.  88  Ramsdell,  C.  W.  88 

Ficklen,  J.  R.  88  Rhodes,  J.  F. 

Galbreath,  C.  B.          82,  99  Thorpe,  F.  N.  30,  88 

Haines,  C.  G.  8,  28  Webster,  W.  C.  24,  36 

Hamilton,  J.  G.  88  Wilson,  W.  2 

Harry,  J.  W.  88  Wooley,  E.  C.  88 


PART    II 

PROVISIONS    OF  EXISTING  CONSTITU- 
TIONS 

CHAPTER  IX 

THE     WRITTEN     CONSTITUTION     AND     ITS     BILL    OF 

RIGHTS 

THE  United  States  has  made  many  a  contribution  to  the 
theory  and  practice  of  modern  politics.  Among  these  by 
no  means  the  least  is  the  written  constitution.  Developed 
during  the  throes  of  the  Revolution,  one  hundred  and  thirty- 
eight  years  ago,  it,  and  its  maker  the  convention,  have  been 
the  chief  means  through  which  democracy  has  made  its 
demands  and  fixed  them  in  the  law  of  the  land.  A  conven- 
tion, democratically  organized,  voices  the  will  of  the  people. 
This  will,  formulated  into  the  fundamental  law,  is  a  guar- 
anty of  life  and  liberty,  and  a  surety  against  governmental 
injustice  and  tyranny. 

Thomas  Jefferson,  the  apostle  of  American  democracy, 
used  to  argue  that  the  constitution  of  every  state  should  be 
revised  at  least  once  "  every  nineteen  or  twenty  years,"  so  as 
to  allow  each  generation  to  determine  for  itself  its  funda- 
mental law.  The  argument  is  even  more  true  since  his  day, 
for  the  conditions  of  life  so  rapidly  change  through  advanc- 
ing civilization,  that  modifications  in  fundamental  law  must 
be  made  at  frequent  intervals.  These  modifications,  as 
Judge  Jameson  l  puts  it,  are  regularly  made  through  a 

1  On  Constitutional  Conventions,  pp.  610-611,  fourth  edition. 
116 


WRITTEN  CONSTITUTIONS  AND   RIGHTS     117 

legislature  and  the  referendum,  when  the  purpose  "is  to 
bring  about  amendments  which  are  few  and  simple,  and 
independent;"  but  a  new  constitution  or  a  revision  of  an 
existing  constitution,  demands  the  services  of  a  convention, 
which  "only  is  appropriate  or  permissible." 

In  more  recent  years,  in  addition  to  the  legislature  and  the 
convention,  one  must  take  into  account  the  use  of  the  con- 
stitutional commission,  and  the  rapidly  growing  use  of  the 
constitutional  initiative  in  the  hands  of  the  electorates  of 
the  states. 

State  constitutions,  both  past  and  present,  so  reflect  the 
changing  conditions  and  varied  interests  of  the  United 
States,  that  a  study  of  them  affords  a  perfect  mirror  of 
American  democracy.  No  one,  surely,  can  arise  from  this 
study  without  a  full  conviction  that  American  political 
institutions  are  established  on  firm  foundations,  and  that 
the  states  are  slowly  working  out  a  mass  of  constitutional 
principles  in  harmony  with  morality  and  intelligence. 

The  earliest  of  the  state  constitutions  were  far  inferior  to 
those  of  later  date.  The  statesmen  of  those  days,  though 
with  the  best  of  intentions,  had  not  a  full  grasp  of  demo- 
cratic principles,  nor  had  they  had  much  political  experience 
in  handling  great  governmental  interests.  Since  their  day 
over  two  hundred  constitutions  have  been  made  in  this 
country  alone,  and  the  conflicting  experiences  of  the  numer- 
ous states  supply  ample  material  for  study.  Consequently, 
it  is  entirely  possible  for  a  state,  profiting  by  past  expe- 
riences and  by  a  study  of  present  constitutions,  to  pre- 
pare a  fundamental  law,  which  shall  express  the  best 
American  political  ideals  and  practices,  and  prove  helpful  in 
the  development  of  the  material  interests  of  its  people. 
The  real  importance  of  these  documents,  as  indicative  of 
the  theories  and  standards  of  nearly  one  hundred  millions  of 


n8          AMERICAN  STATE  CONSTITUTIONS 

population,  becomes  obvious  when  it  is  seen  that  the  citizens 
of  each  of  the  forty-eight  states  determine  their  own  funda- 
mental law,  and  have  unitedly  embodied  their  demands  in 
forty-eight  written  organic  laws,  which  in  round  numbers 
include  about  a  million  words.  Such  prolixity  may  not 
seem  desirable  and  does  at  times  become  ridiculous,  yet, 
after  all,  these  constitutions  are  the  expression  of  popular 
will,  and  possibly  are  developing  into  a  system  of  flexible 
legal  and  administrative  principles  that  some  day  may 
rival  in  historical  importance  the  many  excellencies  and 
virtues  of  the  English  common  law  or  the  basic  teachings  of 
the  Roman  civil  law. 

CONSTITUTION  MAKING 

Historically  the  present  state  constitutions  represent  four 
distinct  periods  of  political  development.  The  first  set l  is 
composed  of  the  constitutions  of  the  six  New  England  states. 
These  are  old-fashioned  in  type,  are  based  on  the  outgrown 
system  of  town  government,  and  are  so  difficult  of  amend- 
ment that  they  retain  many  obsolete  features,  and  therefore 
are  no  longer  suitable  as  models  for  modern  states.  The  best 
of  these  are  the  constitutions  of  Massachusetts  and  Maine. 
The  combination  of  ultra-conservative  rural  towns  and  of  a 
mass  of  immigrant  population  as  yet  ignorant  of  our  political 
institutions,  affords  little  hope  that  these  constitutions  can 
be  modernized  without  long  agitation  and  considerable 
difficulty.  xThe  second  set 2  consists  of  those  constitutions 
made  in  the  period  embracing  the  twenty-five  years  before 
the  ending  of  the  civil  war.  These  seven  constitutions  are 

1  Vermont,  1793;    Massachusetts,  1780;    New  Hampshire,  1784;    Con- 
necticut,  1818;   Maine,   1819,  and  Rhode  Island,  1842.      See,  chap.   xix. 

2  New  Jersey,  1842;  Wisconsin,  1848;  Indiana,  1851 ;  Iowa,  Minnesota, 
1857;   Kansas,  1859;   and  Nevada,  1864. 


WRITTEN  CONSTITUTIONS  AND   RIGHTS     119 

democratic  in  principle  and  excellent  in  tone,  but  do  not 
include  the  experience  of  later  years,  except  as  this  has  in 
part  crept  in  through  amendment,  so  that  they  are  On  the 
whole  sadly  in  need  of  revision.  The  third  set,1  thirteen  in 
number,  represents  in  the  main  the  provisions  emphasized 
as  the  result  of  reconstruction  in  the  south,  and  adaptation 
to  economic  changes  north  and  south,  at  the  close  of  the 
war.  The  last  set,  twenty-two  in  number,  consists  of  two 
groups,  one  made  up  of  the  ten 2  new  mining  and  agricultural 
states  of  the  far  west,  and  the  other3  made  up  of  the 
twelve  states  that  felt  compelled  to  readjust  their  govern- 
mental systems  to  changed  social,  economic  and  political 
conditions  resulting  from  war  and  national  growth. 

Besides  these  constitutions  there  is  an  annually  increasing 
mass  of  amendments  added  through  legislature  and  referen- 
dum, and  through  the  new  device  of  the  constitutional  initia- 
tive. As  a  fair  estimate  of  present  conditions,  it  may  be 
said  that  the  states  submit  every  two  years  nearly  one  hun- 
dred amendments,  about  three-fifths  of  which  are  adopted. 
The  number,  however,  varies  considerably  from  session  to 
session.  Evidently  a  knowledge  of  these  amendments  also 
is  necessary,  representing  as  they  do  the  current  contribution 
of  politics  toward  the  supposed  defects  and  shortcomings  of 
existing  constitutions. 

The  length  of  recent  constitutions  is  one  reason  for  so  large 

1  Maryland,  1867;    Tennessee  and  Illinois,  1870;    West  Virginia,  1872; 
Pennsylvania,  1873;  Arkansas,  1874;  Texas,  Missouri,  North  Carolina  and 
Nebraska,  1875;    Colorado,  1876;    Georgia,  1877;   and  Florida,  1886. 

2  North  Dakota,  South  Dakota,  Montana,  Washington,  in  1889;   Idaho, 
Wyoming,   in   1890;    Utah,   1896;    Oklahoma,   1907;    New  Mexico  and 
Arizona  in  1912. 

3  Mississippi,  1890;  Kentucky,  1891 ;  New  York,  1894;  South  Carolina, 
1895;    Delaware,  1897;    Louisiana,  1898  and  1913;    Alabama,  1901,  Vir- 
ginia, 1902;  Michigan,  1908;  Ohio,  1912;  Oregon,  since  1902;   California, 
since  1911. 


120          AMERICAN  STATE   CONSTITUTIONS 

a  number  of  amendments.  The  earliest  constitutions 
seldom  contained  over  five  thousand  words  and  averaged 
much  less.  Now,  the  shortest  constitution  (Rhode  Island's) 
contains  about  six  thousand  words,  the  average  is  about  six- 
teen thousand,  and  the  five  largest  are  codes  in  themselves.1 
This  lengthening  of  constitutions  is  to  some  extent  due  to  a 
failure  on  the  part  of  constitution  makers  to  distinguish 
between  fundamental  and  statutory  law,  coupled  with  a 
natural  desire  to  magnify  their  importance  as  lawmakers ; 
but  it  is  chiefly  due  to  two  causes :  (i)  the  great  popular 
distrust  of  legislatures  and  (2)  the  growing  complexity  of 
modern  life  and  the  consequent  rise  of  many  new  inter- 
ests that  seem  to  demand  attention.  Charges  of  incapacity 
and  corruption  against  legislators  are  so  common,  that 
conventions  incline  to  limit  and  regulate  in  every  possible 
way  the  powers  of  legislatures,  so  as  to  reduce  the  possi- 
bility of  mischief.  Time  and  experience  will  probably 
remedy  this  wordy  defect  of  state  constitutions,  and,  it 
is  to  be  hoped,  will  also  improve  the  calibre  of  statesmanship 
and  the  quality  of  legislation.  Constitutions  so  verbose 
as  the  five  mentioned  in  the  footnote  require  frequent 
amending,2  and  this  system  so  confuses  the  distinction 
between  fundamental  and  statutory  law,  that  in  such  states 
the  constitutions  represent  a  kind  of  statutory  law  altered 
by  a  somewhat  more  difficult  procedure  than  that  used  in 
the  case  of  ordinary  statutes.  The  real  check  on  a  legis- 
lature is  not  secured  by  turning  the  constitution  into  a 

1  Alabama  uses  thirty-three  thousand  words,  Virginia  thirty-five  thou- 
sand, Louisiana,  about  forty-five  thousand,  and  Oklahoma  nearly  fifty 
thousand.     The  present  constitution  of  California  (1914)  with  its  many 
amendments  has  about  forty  thousand  words. 

2  The  legislature  of  Louisiana,  from  1900-1914,  has  submitted  almost 
one  hundred  amendments,  most  of  which  were  adopted;    though  some  of 
the  earlier  amendments  had  to  be  superseded  by  later  amendments,  as 
amendments  to  amendments. 


WRITTEN  CONSTITUTIONS  AND  RIGHTS      121 

statutory  code,  but  by  making  use  of  the  experiences  of 
the  states  and  their  most  successful  devices  in  securing 
efficient  government. 

PARTS  or  THE  CONSTITUTION 

A  comparison  of  constitutions  shows  that  a  constitution 
regularly  consists  of  a  preamble,  an  enacting  clause,  a  bill 
of  rights,  articles  on  the  several  departments  of  govern- 
ment and  their  subdivisions,  an  article  denning  suffrage 
privileges,  an  article  of  miscellaneous  provisions,  an  article 
devoted  to  amendment  and  revision,  a  ratification  clause, 
and  a  schedule  containing  provisions  of  temporary  impor- 
tance, such  as  arrangements  for  the  substitution  of  the  new 
for  the  old  order  of  things. 

The  Preamble,  which  is  a  statement  of  reasons  and  pur- 
pose, is  regularly  included  in  the  same  paragraph  as  the 
enacting  clause  (Delaware's  is  an  exception).  In  general 
it  follows  the  thought  of  the  preamble  of  the  national  con- 
stitution, but  differs  in  that  some  reference  to  God  is  regu- 
larly found  in  the  preambles  of  the  states.1 

In  thirty- two  enacting  clauses  the  wording  is :  "  We,  the 
people  ...  do  ordain  and  establish."  In  most  of  the  others 
the  wording  is  either  "We,  the  people  ...  do  ordain,"  or 
"We,  the  people  .  .  .  establish."  Maryland  says,  "We,  the 
people  .  .  .  declare,"  three  states  omit  the  pronoun  We,  and 
one  state,  Tennessee,  says,  "We,  the  delegates."  A  concise 
statement  may  be  seen  in  the  constitutions  of  New  York, 
Arizona,  and  Michigan ;  a  lengthy  type,  in  those  of  Massa- 
chusetts and  Delaware. 

Twenty-three  of  the  constitutions  contain  each  an  article 
defining  the  boundaries  of  the  state.  This  is  not  a  matter 
over  which  the  state  has  final  jurisdiction,  but,  as  a  rule,  the 

1  But  see  chap.  x. 


122  AMERICAN   STATE   CONSTITUTIONS 

article  was  inserted  so  as  to  accord  with  the  demands  of 
an  enabling  act ;  it  properly  is  omitted  in  most  of  the  con- 
stitutions. Thirty-three  of  the  constitutions  contain  a 
short,  but  unnecessary  article  on  the  Distribution  of 
Powers.  Twenty  of  these  use  this  particular  title,  but  the 
other  thirteen  use  seven  variations  of  this  wording.  Seven 
of  the  other  fifteen  constitutions  mention  the  separation  of 
powers  in  other  articles,  but  the  other  eight  save  space  by 
omitting  it  entirely.  A  simple  form  of  the  article  may  be 
found  in  the  constitution  of  Rhode  Island,  the  ordinary 
form  is  that  of  Indiana,  and  an  exaggerated  form  is  that  of 
Alabama,  which  seems  to  have  copied  the  substance  of  its 
provision  from  Massachusetts.  In  arranging  the  order  of 
the  usual  three  departments  of  government,  the  arrangement 
regularly  is,  legislative,  executive,  judicial ;  but  three  states1 
place  the  executive  before  the  legislative,  following  the 
historical  order,  rather  than  the  order  of  importance.  As 
the  electorate  represents  the  people,  there  is  a  marked 
tendency  in  many  of  the  constitutions,  nineteen  in  all,  to 
place  the  article  on  suffrage  among  the  first,  as  though  to 
emphasize  the  precedence  of  the  voters  over  the  several 
departments  of  governments.  This  article  logically  should 
be  called  The  Electorate,  or  Qualifications  for  Electors,  but 
as  a  rule  some  variation  of  the  term  Suffrage  is  used  instead. 
A  curious  feature  of  some  constitutions,  old  and  new,  is 
the  insertion  by  requirement  of  congress,  of  an  ordinance, 
which  may  not  be  repealed  without  the  consent  of  congress, 
Article  III  in  the  constitution  of  Utah  2  for  example,  or 
Oklahoma's  Article  I  and  its  Ordinance,  accepting  the 
enabling  act.  Congress  has  full  power  to  demand  that  a 
territory  place  certain  articles  in  its  constitution  as  a  pre- 
requisite to  admission.  Once  the  territory  becomes  a  state, 

1  Colorado,  Kansas,  Maryland.  2  See,  page  19. 


WRITTEN   CONSTITUTIONS  AND  RIGHTS     123 

however,  the  obligation  to  retain  such  articles  is  probably 
moral,  not  legal.1  Otherwise,  it  would  be  hard  to  say  just 
how  such  "  irrevocable  "  articles  can  be  reconciled  with  any 
constitutional  theory  of  the  equality  of  states  in  their  local 
sovereignty.  Territories,  however,  in  becoming  states  have 
learned  not  to  "look  a  gift  horse  in  the  mouth,"  and  con- 
gress in  its  turn  may  prefer  to  ignore  the  fate  of  such  articles 
after  the  lapse  of  a  few  years'  time.2 

The  Schedule  is  now  regularly  found  in  most  of  the  consti- 
tutions (35),  though  almost  unknown  in  the  earlier  consti- 
tutions and  not  now  always  essential,  if  it  be  assumed  that 
a  constitutional  convention  has  ordinance  powers.  Its 
place  properly  is  as  an  addition  to  the  constitution,  not  as  a 
part  of  it,  since  its  provisions  are  of  temporary  importance 
only.  Nineteen  constitutions,  however,  include  it  in  the 
constitution  itself  as  one  of  the  articles.  In  some  cases 
this  is  due  to  a  failure  to  keep  the  schedule  for  temporary 
provisions  only,  matter  being  inserted  which  might  more 
properly  go  under  Miscellaneous  Provisions.3  The  better 
place  for  the  schedule  may  be  seen  in  the  new  constitutions 
of  Delaware,  Alabama  and  Virginia,  though  it  might  more 
correctly  be  placed  after  the  ratification  clause,  so  as  to 
keep  it  entirely  separate  from  the  constitution.  Its  author- 
ity could  be  attested  by  the  signatures  of  the  president  and 
secretary  of  the  convention  as  in  the  case  of  ordinances. 

1  New  Mexico  provides  in  its  amending  article  that  if  congress  gives 
consent,  changes  in  the  terms  of  the  contract  may  be  made  by  a  majority 
vote  of  the  legislature  and  a  referendum.     Yet  in  1912  it  dropped  from  the 
Compact  article  a  section  (5)  which  required  that  the  ability  to  read,  write, 
speak,  and  understand  the  English  language  should  be  a  necessary  qualifi- 
cation for  office  holding. 

2  Oklahoma's  amendment  adding  a  "grandfather  clause"  to  its  suffrage 
article,  and  Arizona's  amendment  authorizing  the  recall  of  judges,  were 
both  in  violation  of  conditions  set  by  congress. 

3  This  article  may  be  overworked.    Texas,  for  example,  has  fifty-seven 
sections  in  its  General  Provisions. 


124          AMERICAN  STATE  CONSTITUTIONS 

So  much  space  is  taken  up  in  some  constitutions  with  appor- 
tionments of  districts  and  their  boundaries,  that  the  ques- 
tion arises  why  these  should  not  be  placed  in  the  schedule, 
or  issued  as  ordinances,  merely  specifying  in  the  constitu- 
tion under  what  conditions  these  may  be  altered  by  the 
legislature.  The  use  of  the  ordinance  is  well  illustrated  in 
the  work  of  the  conventions  that  made  the  present  consti- 
tutions for  Mississippi  and  South  Carolina. 

A  matter  of  some  little  importance  is  the  method  of  num- 
bering the  several  sections  of  the  constitution.  A  cumber- 
some and  old-fashioned  system  may  be  found  in  the  consti- 
tution of  Massachusetts.  The  others,  with  some  exceptions, 
use  the  plan  of  the  national  constitution,  viz.,  articles  num- 
bered with  Roman  numerals  subdivided  into  sections  with 
Arabic  numerals.  Louisiana,  Mississippi,  Kentucky,  Ala- 
bama, Virginia  and  North  Dakota  much  more  sensibly 
imitate  the  earlier  French  constitutions,  and  number 
paragraphs  consecutively  with  Arabic  numerals,  inserting 
titles  in  their  proper  places  with  or  without  Roman  numbers. 
New  Hampshire  and  Vermont  use  the  same  system,  except 
that  their  constitutions  are  divided  into  two  parts,  and 
each  is  numbered  consecutively. 

BILLS  OF  RIGHTS 

All  states  contain  in  their  constitution  formal  bills  of 
rights.  Twenty-four  prefer  the  title  Declaration  of  Rights, 
but  twenty-two  use  the  other  form.  Maryland  has  the 
largest  number  of  provisions,  forty-five.  Louisiana  has 
the  fewest,  fifteen.  Fourteen  states  have  thirty  to  forty; 
twenty-three  have  twenty  to  thirty,  and  ten  manage  to 
get  along  with  less  than  twenty.  In  three  of  the  constitu- 
tions,1 the  Bill  of  Rights  comes  first  after  the  enacting  clause 

1  Colorado,  Kansas,  Maryland. 


WRITTEN   CONSTITUTIONS  AND   RIGHTS     125 

or  preamble,  and  before  the  articles.  In  thirty-three  con- 
stitutions it  makes  the  first  article,  in  eleven  it  is  either  the 
second  or  third  article,  in  one,  South  Dakota,  it  is  the  sixth. 
A  bill  of  rights  properly  should  contain  only  broad  general 
principles  in  regard  to  the  purposes  and  spirit  of  government, 
and  general  instructions  and  prohibitions  declaring  the  fun- 
damental safeguards  for  life,  liberty  and  property.  These,- 
principles  of  liberty  and  democracy  are  now  so  thoroughly 
ingrained  in  our  legal  systems  as  hardly  to  need  explicit 
statement  in  a  constitution,  yet  they  will  doubtless  be  long 
retained  as  assurances  against  possible  legislative  tyranny 
and  as  mementos  of  former  struggles.  They  include  guar- 
anties of  life,  liberty,  property,  and  happiness ;  freedom  of 
conscience,  speech,  press,  petition,  and  assembly;  habeas 
corpus,  open  courts,  a  fair  trial  and  the  jury  in  cases  of 
crime  ;  the  right  to  bear  arms,  to  hold  free  elections,  and  to 
"  reform,  alter  or  abolish  forms  of  government ;"  guaranties 
against  unreasonable  search,  seizure,  imprisonment  or  bail ; 
and  provisions  in  regard  to  treason,  martial  law,  and  im- 
prisonment for  debt.  Evidently  such  provisions  as  these  are 
well  worth  preserving  in  our  fundamental  law.  On  the  other 
hand  one  may  question  whether  it  is  worth  while  to  retain 
references  to  the  exploded  theory  of  social  compact,  or  to 
guaranty  the  right  of  emigration,  or  to  insert  provisions  in 
respect  to  lotteries,  lobbying,  dueling,  pensions,  punish- 
ments, slavery,  contempt  of  court,  and  the  tenure  of  office. 
Such  matters  may  or  may  not  deserve  place  in  our  constitu- 
tions, but  surely  not  in  a  bill  of  rights.  Again,  when  a 
simple  right  of  earlier  days  becomes  complex,  it  might  better 
go  into  the  main  body  of  the  constitution  under  its  appro- 
priate heading.  Trial  by  jury,  for  instance,  is  frequently 
modified  nowadays  by  waiving  it  altogether  in  certain  kinds 
of  cases,  or  by  changes  in  the  traditional  number  and  the 


126          AMERICAN  STATE   CONSTITUTIONS 

unanimous  verdict.  Such  modifications  properly  belong  to 
the  judicial  department.  Again,  the  statement  that  "the 
property  of  no  man  shall  be  taken  for  public  use  without 
just  compensation  therefor  "  (Connecticut) ,  is  simple  enough, 
but  when  this  right  is  hedged  about  with  numerous  explana- 
tory clauses  1  it  might  better  be  transferred  to  the  legislative 
department.  A  similar  remark  would  apply  to  the  subject 
of  libel,  which  now  is  generally  amplified  in  constitutions. 

In  general  it  may  be  said  that  these  bills  contain  too  many 
provisions  of  doubtful  truth,  of  local  or  temporary  impor- 
tance, and  of  details  that  properly  belong  to  other  articles. 
Many  of  the  newer  provisions  found  in  some  bills  are  in 
others  placed  under  more  appropriate  headings  in  the  con- 
stitution, so  that  there  seems  to  be  a  real  confusion  as  to 
what  should  or  should  not  be  inserted.  It  is  possible  that  a 
close  study  of  the  great  movements  of  the  times  might 
result  in  the  formulation  of  new  sets  of  rights  worth  insert- 
ing ;  rights,  for  instance,  of  labor,  women,  children,  and  of 
electorates  in  respect  to  their  definite  control  over  all  gov- 
ernmental agencies.  There  are  some  new  provisions  now 
very  generally  inserted  in  the  later  constitutions  that  are 
important  enough  to  become  permanent  additions  to  bills 
of  rights.  Two  at  least  are  so  important  that  a  convention 
failing  to  insert  them  in  substance  somewhere  in  the  con- 
stitution should  be  considered  derelict  in  its  duty :  —  Four- 
teen constitutions  for  instance  read,  "No  money  shall  ever 
be  taken  from  the  public  treasury,  directly  or  indirectly,  in 
aid  of  any  church,  sect,  or  religious  denomination,  or  in  aid 
of  any  sectarian  institution1' ;  and  seven  insert  the  provision 
that  "Every  grant  or  franchise,  privilege  or  immunity,  shall 

1  See  for  example  California,  Section  14 ;  or  it  might  even  be  made  into 
a  special  article,  as  in  Michigan,  Article  XIII.  Amendments  permitting 
excess  condemnation  have  already  begun ;  e.g.,  in  New  York,  Massachusetts 
and  other  states. 


WRITTEN  CONSTITUTIONS  AND   RIGHTS     127 

forever  remain  subject  to  revocation,  alteration,  or  amend- 
ment." 1 

There  are  two  provisions  rather  generally  inserted  in  bills 
of  rights  which,  though  not  so  essential  as  they  were  once,  yet 
deserve  place  for  historic  reasons  if  not  otherwise.  They  are 
"The  rights  enumerated  in  this  bill  of  rights  shall  not  be 
construed  to  limit  other  rights  of  the  people  not  therein 
expressed,'7  and  "The  provisions  of  this  constitution  are 
mandatory  and  prohibitory,  unless  by  express  words  they 
are  declared  to  be  otherwise."  In  conclusion  of  this  topic 
it  may  be  said  that  many  states  have  found  the  substance  of 
the  first  eight  amendments  to  the  national  constitution  2  to 
be  the  best  basis  for  their  own  bills  of  rights. 

1  There  are  numerous  variations  of  these  two  provisions  in  different  articles 
of  other  constitutions. 

2  It  is  understood  that  these  rights  in  the  national  constitution  are 
guaranties  against  congressional  action  only;    each  state  needs  to  repeat 
them  in  substance  in  its  own  constitution,  except  in  so  far  as  they  may  be 
considered  as  secured  by  the  fourteenth  amendment. 


CHAPTER  X 
RELIGIOUS  PROVISIONS  OF  THE  STATE  CONSTITUTIONS 

THE  principle  of  religious  liberty  is  one  of  the  most  strik- 
ing features  of  American  democracy.  Foreign  students  of 
our  institutions  regularly  manifest  deep  surprise  at  the  prac- 
tical workings  of  the  theory  of  the  separation  of  church  and 
state.  Chapter  CVI  for  instance  of  Bryce's  American  Com- 
monwealth illustrates  this  attitude  of  mind.  The  national 
constitution  took  advanced  ground  when  it  forbade  congress 
to  establish  religion  or  to  prohibit  its  free  exercise,  and  recog- 
nized no  religious  test  as  a  qualification  for  office  or  public 
trust.1  Some  of  the  states  even  yet  have  not  advanced  so 
far.  There  are  still  survivals  in  the  constitutions  of  that 
earlier,  more  intolerant  spirit  which  now  seems  so  strangely 
out  of  place.  The  religious  provisions  of  the  state  consti- 
tutions may  roughly  be  divided  into  two  classes  :  (i)  those 
aiming  to  establish  religious  freedom  ;  and  (2)  those  involv- 
ing some  recognition  of  religion.  A  statement  of  each  of 
these  in  turn  may  present  some  interesting  features. 

RELIGIOUS  FREEDOM 

All  forty-eight  constitutions  in  plain  terms  provide  for 
freedom  of  worship  but  vary  considerably  in  methods  of 
expression.  Michigan,  for  example,  states  that  "  Every  per- 
son shall  be  at  liberty  to  worship  God  according  to  the  dic- 
tates of  his  own  conscience.  No  person  shall  be  compelled 

1  Amendment  I  and  last  clause  of  Article  VI. 
128 


RELIGIOUS  PROVISIONS 


129 


to  attend,  or,  against  his  consent,  to  contribute  to  the  erec- 
tion or  support  of  any  place  of  religious  worship,  or  to 
pay  tithes,  taxes  or  other  rates  for  the  support  of  any  min- 
ister of  the  gospel  or  teacher  of  religion."  North  Dakota, 
by  contrast,  provides  that  "The  free  exercise  and  enjoyment 
of  religious  profession  and  worship,  without  discrimination 
or  preference,  shall  be  forever  guaranteed  in  this  state." 
Utah,  after  a  similar  provision,  adds,  emphatically,  "There 
shall  be  no  union  of  church  and  state,  nor  shall  any  church 
dominate  the  state  or  interfere  with  its  functions."  Other 
constitutions  again,  like  those  of  Massachusetts,  Rhode 
Island,  and  New  Hampshire,  have  lengthy  provisions,  the 
last  named  state  employing  two  hundred  and  seventy-three 
words  for  Article  VI  of  its  Bill  of  Rights.  The  additional 
matter  as  a  rule  amplifies  the  principle  in  detail  by  specify- 
ing that  no  preference  shall  be  given  by  law  to  religious  so- 
cieties ;  that  no  person  shall  be  compelled  against  his  will 
to  contribute  toward  their  support,  nor  to  attend  services ; 
that  every  person  shall  be  free  to  profess  and  maintain  by 
argument  his  religious  beliefs ;  and  that  every  religious 
denomination  shall  be  protected  in  the  peaceable  enjoyment 
of  its  own  mode  of  worship.  Rhode  Island  has  an  eighty 
word  whereas,  as  preface  to  its  provision,  and  states  therein 
its  historic  argument  for  religious  liberty.  Twenty  consti- 
tutions however,  are  careful  to  say  in  varying  phraseology 
that  liberty  of  conscience  shall  not  be  construed  so  as  to 
excuse  acts  of  licentiousness,  nor  justify  practices  incon- 
sistent with  the  peace  and  safety  of  the  state.  Many 
provide  that  liberty  of  conscience  shall  not  be  construed  to 
dispense  with  oaths  or  affirmations,  and  Idaho,  Montana, 
Utah,  Oklahoma,  Arizona  and  New  Mexico l  expressly 

1  The  last  four  were  instructed  to  insert  this  clause  by  the  congressional 
enabling  act. 


130          AMERICAN  STATE   CONSTITUTIONS 

except  polygamous  marriage  from  a  guaranty  of  religious 
freedom. 

The  constitutions  generally  provide  that  no  limitations 
shall  be  placed  on  an  individual's  rights  because  of  his  reli- 
gious beliefs.  Seven  states  for  example  prohibit  the  denial 
on  such  grounds  of  civil  rights  ;  ten  other  states  put  it  "No 
civil  or  political  rights  shall  be  denied;"  and  twenty- two 
states  declare  that  no  religious  test  shall  be  required  as  a 
qualification  for  any  office  or  public  trust.  Four  states  1 
specify  that  no  religious  test  shall  ever  be  required  as  a 
qualification  for  voting.  In  judicial  matters  nine  states 
forbid  any  religious  test  as  a  qualification  for  jurors,  and 
twenty-one  states  safeguard  witnesses  in  the  same  way. 
Oregon  and  Washington  add  to  these  provisions,  "nor  be 
questioned  in  any  court  of  justice  touching  his  religious 
belief,  to  affect  the  weight  of  his  testimony."  On  the  other 
hand  two  constitutions  insert  a  provision  inherited  from  the 
political  theories  of  Cromwell's  time : 2  Maryland  bluntly 
provides  that  "No  minister  or  preacher  of  the  gospel,  or  of 
any  religious  creed  or  denomination,  shall  be  eligible  as 
senator  or  delegate."  Tennessee  is  far  more  courteous  in  its 
similar  provision.  "Whereas,  ministers  of  the  gospel  -are, 
by  their  profession,  dedicated  to  God  and  the  care  of  souls, 
and  ought  not  to  be  diverted  from  the  great  duties  of  their 
functions ;  therefore,  no  minister  of  the  gospel  or  priest  of 
any  denomination  whatever,  shall  be  eligible  to  a  seat  in 
either  house  of  the  legislature." 

Freedom  of  conscience  is  also  safeguarded  by  exempting 
from  military  duty  those  who  are  conscientiously  opposed  to 
war.  Twenty-three  states  have  provisions  of  this  sort, 
varying  from  the  quaint  phraseology  of  Maine,  "Persons  of 

1  Kansas,  Minnesota,  Utah,  West  Virginia. 

2  For  example,  Harrington's  Oceana. 


RELIGIOUS  PROVISIONS  131 

the  denominations  of  Quakers  and  Shakers,  .  .  .  and  min- 
isters of  the  gospel  may  be  exempted  from  military  duty," 
to  the  businesslike  statement  of  Washington.  "No  person 
or  persons  having  conscientious  scruples  against  bearing 
arms  shall  be  compelled  to  do  military  duty  in  time  of  peace  : 
Provided,  such  person  or  persons  shall  pay  an  equivalent 
for  such  exemption." 

Some  of  our  states  by  experience  have  found  out  that 
religious  sects  can  be  indirectly  supported  from  public 
funds  by  grants  to  religious  philanthropic  institutions, 
especially  hospitals  and  orphan  asylums.  Twenty-four 
states  recognize  the  danger  of  this  policy  and  forbid  in  more 
or  less  vigorous  terms  such  grants.  A  typical  provision  of 
this  sort  (Michigan)  reads :  "No  money  shall  be  appropri- 
iated  or  drawn  from  the  treasury  for  the  benefit  of  any 
religious  sect  or  society,  theological  or  religious  seminary, 
nor  shall  property  belonging  to  the  state  be  appropriated 
for  any  such  purpose."  Montana  has  a  still  stronger  pro- 
hibition; "No  appropriation  shall  be  made  for  charitable, 
industrial,  educational  or  benevolent  purposes  to  any  per- 
son, corporation  or  community  not  under  the  absolute 
control  of  the  state,  nor  to  any  denominational  or  sectarian 
institution  or  association."  Lengthy  provisions  of  a  similar 
nature,  but  with  certain  provisos,  may  be  found  in  Cali- 
fornia, Article  IV,  sections  22  and  30 ;  Louisiana,  Article  53, 
and  Virginia,  section  67.  A  kindred  provision  forbidding 
aid  to  sectarian  educational  institutions  may  be  found  in 
thirty- two  constitutions.1  Article  253  of  the  Louisiana 
constitution  contains  this  provision  in  simple  form,  "No 
funds  raised  for  the  support  of  the  public  schools  of  the 
state  shall  be  appropriated  to  or  used  for  the  support  of 
any  private  or  sectarian  schools."  A  safer  and  far  more 

1  Due  in  most  cases  to  congressional  instructions  in  enabling  acts. 


132          AMERICAN  STATE   CONSTITUTIONS 

emphatic  form  may  be  seen  in  Utah's  constitution,  Article 
X,  section  13  :  ''Neither  the  legislature  nor  any  county,  city, 
town,  school  district  or  other  public  corporation,  shall  make 
any  appropriation  to  aid  in  the  support  of  any  school,  semi- 
nary, academy,  college,  university,  or  other  institution, 
controlled  in  whole,  or  in  part  by  any  church,  sect,  or  denom- 
ination whatever."  This  provision  is  in  nine  constitutions 
enlarged  by  an  injunction  against  the  teaching  of  sectarian 
doctrines:  Wyoming  says,  "nor  shall  any  sectarian  tenets 
or  doctrines  be  taught  or  favored  in  any  public  school  or 
institution  that  may  be  established  under  this  constitu- 
tion;" Wisconsin  expressly  forbids  sectarian  instruction  in 
its  university,  and  California  also  desires  its  university  to 
be  kept  "entirely  independent  of  all  sectarian  influence." 
Nebraska  and  South  Dakota  unite  in  a  provision  which  in 
the  constitution  of  the  last  named  state  reads  as  follows : 
"Nor  shall  the  state,  or  any  county  or  municipality  within 
the  state,  accept  any  grant,  conveyance,  gift  or  bequest  of 
lands,  money  or  other  property  to  be  used  for  sectarian 
purposes."  Seven  of  the  mining  states,1  curiously  enough 
substantially  agree  in  providing  that,  "No  religious  test  or 
qualification  shall  ever  be  required  of  any  person  as  a  condi- 
tion of  admission  into  any  public  educational  institution  of 
this  state,  either  as  teacher  or  student ;  and  no  teacher  or 
student  of  any  such  institution  shall  ever  be  required  to 
attend,  or  participate  in,  any  religious  service  whatever." 
(Colorado,  IX,  8.).  Kentucky  has  it  in  the  form,  "nor  shall 
any  man  be  compelled  to  send  his  child  to  any  school  to 
which  he  may  be  conscientiously  opposed."  Mississippi 
however,  in  providing  for  religious  liberty  expressly  says 
that,  "The  rights  hereby  secured  shall  not  be  construed  to 
exclude  the  Holy  Bible  from  use  in  any  public  school  of  this 

1  Colorado,  Idaho,  Montana,  Wyoming,  Utah,  Arizona,  New  Mexico. 


RELIGIOUS  PROVISIONS  133 

state."  Perhaps,  however,  the  most  curious  of  this  series 
of  prohibitions  is  found  in  the  constitutions  of  Michigan 
and  Oregon,  which  provide  that  no  money  shall  be  appro- 
priated for  the  payment  of  any  religious  services  in  either 
house  of  the  legislature.  The  odd  part  of  the  Michigan  pro- 
vision is  that  in  the  same  paragraph  forbidding  religious 
services  for  the  legislature  it  authorizes  the  employment  of 
a  chaplain  for  the  state  prison ;  apparently  its  inmates  were 
considered  more  susceptible  to  religious  influences.  Missis- 
sippi also  has  the  spiritual  welfare  of  its  prisoners  at  heart 
and  permits  the  legislature  to  provide  for  "  religious  wor- 
ship for  the  convicts." 

Unless  there  be  a  prohibition  in  the  constitution,  a  legis- 
lature under  its  general  lawmaking  powers  may  exempt 
property  used  for  religious  purposes  from  taxation.  For 
this  reason  most  constitutions  are  silent  in  respect  to  such 
exemptions.  Fourteen  states,  however,  expressly  authorize 
their  legislatures  to  exempt  such  property.  A  few  states 
have  some  curious  provisions  in  regard  to  this  matter. 
Virginia  and  West  Virginia  agree  in  forbidding  a  charter  of 
incorporation  to  any  church  or  religious  denomination,  but 
authorize  the  assemblies  to  secure  the  title  to  church  prop- 
erty so  as  to  hold  it  for  designated  purposes.  Missouri 
allows  religious  corporations  to  be  established  under  general 
law  but  only  for  the  purpose  of  holding  title  to  not  over  five 
acres  of  land  (one  acre  within  a  city)  and  buildings  thereon, 
if  used  for  religious  purposes.  Maryland  in  a  lengthy  article 
in  its  bill  of  rights  (Article  38)  forbids  every  gift,  sale  or 
devise  for  religious  purposes  without  the  prior  or  subsequent 
sanction  of  the  legislature,  but  excepts  from  this  provision 
land  not  exceeding  five  acres  and  its  buildings.  Mississippi 
goes  farthest  of  all  in  prohibiting  every  devise,  legacy,  gift 
or  bequest  to  a  religious  body  or  corporation,  and  authorizes 


134          AMERICAN  STATE  CONSTITUTIONS 

the  heir-at-law  to  take  such  property  "as  though  no  tes- 
tamentary disposition  had  been  made."  l  As  a  final  illus- 
tration of  the  regulation  of  property  used  for  religious 
purposes,  we  find  Kansas  anticipating  modern  French 
policy  by  providing  tljat,  "The  title  to  all  property  of  reli- 
gious corporations  shall  vest  in  trustees,  whose  election  shall 
be  by  the  members  of  such  corporations." 

RECOGNITION  or  RELIGION 

The  provisions  in  constitutions  that  involve  some  recogni- 
tion of  religion  are  simple  and  comparatively  few  in  number. 
The  most  important  of  these  is  a  formal  acknowledgment 
of  the  goodness  of  God.  Forty- three  constitutions  place  in 
their  preambles  this  recognition ;  three,  having  no  preamble, 
omit  it  (West  Virginia,  New  Hampshire,  Vermont) ;  and 
two  make  no  reference  to  God  in  their  preambles  (Tennessee, 
Oregon).  In  thirty- three  preambles  the  term  Almighty 
God  is  used ;  three  use  the  term  God ;  and  three,  Supreme 
Ruler  of  the  Universe.  The  following  terms  each  occur  once 
only :  Creator,  Supreme  Being,  Sovereign  Ruler  of  the 
Universe,  Sovereign  Ruler  of  Nations,  and  Great  Legislator 
of  the  Universe.  The  most  common  form  is  a  simple  ac- 
knowledgment of  gratitude  for  the  enjoyment  of  rights  and 
liberty  (twenty-three  constitutions)  ;  thirteen  others  add 
to  that  an  invocation  or  a  statement  of  reliance  on  Him  for 
blessings  and  guidance;  four  use  the  invocation  or  state- 
ment of  reliance  only,  two  use  the  phrase,  "with  profound 
reverence  for  the  Supreme  Ruler  of  the  Universe,"  and 
Delaware  ascribes  to  Divine  Goodness  the  fact  that  "all 
men  have  by  nature  the  rights  of  worshiping  and  serving 
their  Creator  according  to  the  dictates  of  their  consciences." 
The  following  quotations  illustrate  the  usual  phraseology : 

1  Sections  269,  270. 


RELIGIOUS  PROVISIONS  135 

"Grateful  to  Almighty  God  for  our  freedom;"  " Grateful 
to  Almighty  God,  and  invoking  his  blessing  on  our  work ;" 
"  Grateful  to  Almighty  God  and  humbly  invoking  His 
guidance;"  " Humbly  invoking  the  blessings  of  Almighty 
God." 

Three  constitutions,1  in  their  bills  of  rights  quote  from  the 
Declaration  of  Independence,  asserting  that  men  are  free 
and  equal  and  endowed  by  their  Creator  with  certain  inalien- 
able rights.  Similar  provisions  in  other  constitutions  omit 
the  word  Creator. 

All  of  the  forty-eight  constitutions  provide  that  the  officers 
of  the  state  take  oath  or  affirmation  on  entering  office  and  as 
a  rule  give  the  oath  or  affirmation  verbatim.  In  eighteen 
constitutions  the  oath  ends  with  the  sentence  "So  help  me 
God"  (Vermont  and  Connecticut  use  the  second  person). 
Seven  of  these  substitute,  in  case  of  an  affirmation,  the 
phrase  "under  the  pains  and  penalties  of  perjury."  Four 
constitutions  also  provide  for  an  oath  or  affirmation  at 
registration,  or  if  challenged  when  voting. 

Among  the  most  curious  survivals  of  religious  intolerance 
are  those  found  in  eight  constitutions  regarding  qualifica- 
tions for  office.  Both  Arkansas  and  Mississippi  expressly 
state  that  no  religious  test  shall  be  required  as  a  qualifica- 
tion for  office ;  yet  in  later  articles  provide  that  no  person 
who  denies  the  existence  of  God  shall  hold  any  office ;  and 
Arkansas  adds,  "nor  be  competent  to  testify  as  a  witness  in 
any  court."  Maryland,  North  Carolina,  South  Carolina, 
and  Texas  likewise  refuse  office  under  similar  conditions,  but 
Maryland  also  adds  that  a  witness  or  juror  must  believe 
"in  the  existence  of  God,  and  that  under  His  dispensation 
such  person  will  be  held  morally  accountable  for  his  acts, 
and  be  rewarded  or  punished  therefor  in  this  world  or  the 

1  Alabama,  Indiana,  North  Carolina. 


136          AMERICAN  STATE  CONSTITUTIONS 

world  to  come."  Pennsylvania  1  and  Tennessee,  however, 
go  still  farther  by  requiring  as  a  qualification  for  any  office 
a  belief  in  the  being  of  God  and  in  a  future  state  of  rewards 
and  punishments.  This  provision  of  Tennessee's  consti- 
tution must  be  a  lineal  descendant  of  a  provision  of  the 
constitution  submitted  by  the  Rev.  Samuel  Houston  in  1785 
for  the  State  of  Frankland  (Tennessee) .  It  reads  as  follows  : 
No  person  shall  be  eligible  or  capable  to  serve  in  any  office 
of  this  state  who  denies  any  of  the  following  propositions, 
viz. :  (i)  That  there  is  one  living  and  true  God,  the  Creator 
and  Governor  of  the  Universe.  (2)  That  there  is  a  future 
state  of  rewards  and  punishments.  (3)  That  the  scriptures 
of  the  Old  and  New  Testaments  are  given  by  divine  inspira- 
tion. (4)  That  there  are  three  divine  persons  in  the  God- 
head, coequal  and  coessential.2 

MISCELLANEOUS  PROVISIONS 

The  constitutions  of  Virginia  and  Oklahoma  are  the  only 
ones  to  mention  the  Young  Men's  Christian  Association ; 
the  latter  authorizes  free  passes  to  be  given  to  its  traveling 
secretaries,  "and  to  ministers  of  religion."  Mississippi  and 
Michigan,  as  already  stated,  and  Washington  authorize 
religious  worship  for  convicts,  and  the  first  of  these,  along 
with  South  Carolina,  allows  ministers  of  the  gospel  to  reg- 
ister and  vote  after  a  shorter  time  requirement  than  other 
classes  of  persons.  New  Mexico  provides  that,  "The  use  of 
wines  solely  for  sacramental  purposes  under  church  authority 
at  any  place  within  this  State  shall  never  be  prohibited." 
There  are  no  longer  any  religious  restrictions  on  the  exercise 
of  suffrage.  North  Carolina  recognizes  that,  "provision 

1  See  also  p.  36. 

2 But  see  Article  xxxii  in  the  Constitution  of  North  Carolina  (1776),  the 
parent  colony. 


RELIGIOUS  PROVISIONS  137 

for  the  poor,  the  unfortunate,  and  orphan,  is  one  of  the  first 
duties  of  a  civilized  and  Christian  state,"  and  Tennessee 
provides  that  "No  person  shall  in  time  of  peace  be  required 
to  perform  any  service  to  the  public  on  any  day  set  apart 
by  his  religion  as  a  day  of  rest."  Delaware  asserts  that 
"it  is  the  duty  of  all  men  frequently  to  assemble  together 
for  the  public  worship  of  Almighty  God;  and  piety  and 
morality,  on  which  the  prosperity  of  communities  depends, 
are  thereby  promoted."  Vermont  goes  still  farther  in 
saying  that  "every  sect  or  denomination  of  Christians  ought 
to  observe  the  Sabbath  or  Lord's  Day,  and  keep  up  some 
sort  of  religious  worship,  which  to  them  shall  seem  most 
agreeable  to  the  revealed  will  of  God."  It  also  orders  its 
legislature  to  encourage  societies  organized  for  the  advance- 
ment of  religion.  Massachusetts  in  its  eleventh  amend- 
ment asserts  that  "the  public  worship  of  God  and  instruc- 
tions in  piety,  religion,  and  morality,  promote  the  happiness 
and  prosperity  of  a  people  and  the  security  of  a  republican 
government."  In  Chapter  V  also  it  declares  that  "our  wise 
and  pious  ancestors  .  .  .  laid  the  foundation  of  Harvard 
College,  in  which  university  many  persons  of  great  emi- 
nence have,  by  the  blessing  of  God,  been  .  .  .  qualified  for 
public  employments,  both  in  church  and  state ; "  and  adds 
that  "the  encouragement  of  arts  and  sciences,  and  all  good 
literature,  tends  to  the  honor  of  God  and  the  advantages  of 
the  Christian  religion . ' '  Notwithstanding  the  recommenda- 
tions of  its  last  three  constitutional  conventions,  New  Hamp- 
shire still  retains  its  Puritanic  article  (6)  on  evangelical 
protestantism.  The  first  sentence  reads  as  follows:  "As 
morality  and  piety,  rightly  grounded  on  evangelical  prin- 
ciples, will  give  the  best  and  greatest  security  to  govern- 
ment, and  will  lay  in  the  hearts  of  men  the  strongest  obliga- 
tions to  due  subjection,  and  as  the  knowledge  of  these  is 


138          AMERICAN  STATE   CONSTITUTIONS 

most  likely  to  be  propagated  through  a  society  by  the 
institution  of  the  public  worship  of  the  Deity  and  of  public 
instruction  in  morality  and  religion,  therefore,  to  promote 
these  important  purposes,  the  people  of  this  state  have  a 
right  to  empower  and  do  hereby  fully  empower,  the  legis- 
lature to  authorize,  from  time  to  time,  the  several  towns, 
parishes,  bodies  corporate,  or  religious  societies  within  this 
state  to  make  adequate  provision,  at  their  own  expense,  for 
the  support  and  maintenance  of  public  Protestant  teachers 
of  piety,  religion,  and  morality."  1 

As  the  foregoing  paragraphs  include  all  the  religious  pro- 
visions of  American  constitutions  now  in  force,  our  consti- 
tutional attitude  toward  religion  is  plainly  manifest.  Free- 
dom of  conscience  is  fully  guarantied,  and  the  few  intolerant 
limitations  on  rights  are  in  fact  probably  obsolete.  What- 
ever power  religion  has  in  the  United  States  over  the  lives 
of  men  is  due  to  its  inherent  strength,  not  to  a  support  de- 
rived from  the  state. 

SPECIAL  REFERENCES 

BLAKELY,  WILLIAM  A.  Compiled  by,  American  State  Papers  bear- 
ing on  Religious  Legislation.  New  York.  1891. 

BROWN,  S.  W.  The  Secularization  of  American  Education.  1912. 
Col.  Univ.  Teachers  College  Series,  No.  49. 

HICKS,  F.  C.  Marriage  and  Divorce  Provisions  in  the  State  Con- 
stitutions. Annals,  V.  26.  pp.  745-48. 

LAUER,  PAUL  E.  Church  and  State  in  New  England.  Johns  Hop- 
kins Studies,  Volume  X,  especially  Chapters  IV,  V. 

SCHAFF,  PHILIP.  Church  and  State  in  the  United  States.  Papers 
American  Historical  Association.  Volume  II.  pp.  391-543.  1888. 

1  The  word  Protestant  is  the  one  especially  objected  to  by  the  conventions. 


CHAPTER  XI 
THE  AMENDMENT  AND  REVISION  OF  CONSTITUTIONS1 

AMENDMENT 

THE  amending  article  of  a  constitution  undoubtedly 
demands  most  careful  attention.  In  some  respects  it  is  its 
most  important  article,  since  it  determines  whether  the 
constitution  shall  be  flexible  and  easy  of  amendment,  or  so 
rigid  as  to  be  practically  unalterable.2  Many  of  our  states 
are  thus  hindered  and  have  difficulty  in  finding  a  way  out  of 
their  dilemma.  In  consequence,  needed  changes  in  obsolete 
requirements  cannot  be  made,  so  that  the  state's  civic  and 
economic  progress  is  retarded.  Such  blunders  in  phrase- 
ology should  be  entirely  unnecessary  in  these  days,  and 
might  readily  be  avoided,  if  conventions  were  familiar  with 
the  experiences  of  many  of  our  states,  and  with  the  develop- 
ment of  our  processes  of  amendment.  An  explanation  of 
these  processes  will  now  be  set  forth  as  briefly  as  the  impor- 
tance of  the  subject  will  admit. 

Some  of  our  earliest  state  constitutions  contained  no  pro- 
visions for  their  amendment.  This  proved  no  bar  to  alter- 
ation, for  they  were  amended  or  revised  through  ordinary 
legislative  methods  or  in  convention.  Gradually  provisions 
were  introduced  authorizing  legislatures  to  make  amend- 
ments, but  by  a  more  difficult  procedure  than  that  required 

1  For  an  excellent  recent  work  on  this  subject  see,  The  Revision  and 
Amendment  of  State  Constitutions.     By  W.  F.  Dodd. 

2  See,  Bryce,  Flexible  and  Rigid  Constitutions  (Bibliography). 

139 


140          AMERICAN  STATE   CONSTITUTIONS 

for  statutes;  at  a  later  period  it  was  required  that  such 
amendments  be  submitted  to  the  electorates  for  approval 
or  rejection.  Then  in  still  later  development  there  came  a 
provision  that  an  entire  revision  should  be  made  by  a  con- 
vention convoked  for  that  special  purpose.  This  body  was 
usually  called  together  by  the  legislature,  but  in  two  states, 
Pennsylvania  and  Vermont,  by  a  special  body  known  as  the 
board  of  censors,  which  was  empowered  to  convoke  a  con- 
vention and  to  submit  amendments. 

Forty-seven  of  the  states  provide  methods  of  amendment, 
the  exception  being  New  Hampshire,  which  amends  only 
through  a  convention.  When  constitutions  were  brief  and 
contained  nothing  but  fundamentals,  the  process  of  amend- 
ment was  properly  difficult.  This  was  attained  by  the  re- 
quirement of  the  action  of  two  legislatures,  and  large  frac- 
tions in  voting.  But  when  constitutions  became  lengthy 
as  at  present,  the  process  had  to  become  easier.  This 
development  may  be  seen  in  the  following  statements : 

Sixteen  states  still  require  the  action  of  two  legislatures  on 
amendments,  one  is  sufficient  in  the  other  thirty-two.  If 
sessions  were  annual  as  formerly,  the  requirement  of  two 
sessions  meant  a  period  of  two  or  three  years  from  initiation 
to  referendum.  But  with  biennial  sessions  the  time  length- 
ens to  four  or  five  years.  One  session,  therefore,  is  naturally 
dropped.  Of  the  sixteen  states  that  still  require  the  action 
of  two  legislatures  Delaware  alone  uses  no  referendum. 
South  Carolina  and  Mississippi  have  the  referendum  take 
place  between  the  action  of  the  two  legislatures.  Connect- 
icut, Vermont,  Massachusetts  and  Tennessee  have  peculiar 
variations  in  their  amending  processes  and  the  other  ten 1 
states  have  action  of  two  legislatures  precede  the  referendum. 

1  Rhode  Island,  New  Jersey,  New  York,  Virginia,  Pennsylvania,  Indiana, 
Wisconsin,  Iowa,  North  Dakota,  Nevada. 


AMENDMENT  AND   REVISION  141 

Seventeen  constitutions  require  that  amendments  be  sub- 
mitted by  two-thirds  vote  of  each  house,  nineteen  re- 
quire a  majority  only,  and  seven  a  three-fifths  vote. 
Four  of  the  states  that  employ  action  of  two  legislatures 
require  one  action  by  two- thirds  vote  and  the  other  by 
majority. 

The  referendum  requirement  in  thirty- three  states  is  "a 
majority  of  those  voting  thereon,"  but  twelve 1  have  some 
variation  of  the  objectionable  " majority  of  electors." 
Rhode  Island  requires  a  three-fifths  vote,  New  Hampshire 
requires  a  two-thirds  vote,  and  Delaware,  as  already  said, 
uses  no  referendum  for  amendments.  A  general  election  is 
specified  in  twenty-five  constitutions,  but  in  some  states  a 
special  election  may  be  ordered.  To  avoid  " rider"  amend- 
ments, twenty-nine  of  the  states  require  that  each  amend- 
ment shall  be  submitted  separately.  Kentucky  adds  that 
each  must  contain  one  subject  only,  and  Alabama  insists 
that  the  substance  of  each  be  printed  on  the  ballot.  Eight 
states  2  place  limitations  on  the  number  of  amendments  to 
be  submitted  at  one  time,  the  number  varying  from  two 
to  six.  Five  states  forbid  action  on  a  rejected  amendment 
until  after  a  specified  period,  varying  from  four  to  six  years 
(Tennessee).  Five  others3  limit  the  years  when  proposals 

1  See,  p.  144.      The  straits  to  which  a  state  having  this  requirement 
may  be  driven  is  shown  by  legislation  passed  in  Alabama,  1898 ;  Nebraska, 
1901 ;    and  Ohio,  1902.     Those  laws  in  substance  provided  (i)  that  if  a 
state  convention  of  a  political  party  declared  for  or  against  a  constitutional 
amendment,  such  declaration  should  be  considered  a  portion  of  the  party 
ticket,  and  that  a  straight  vote  for  the  party  should  be  counted  as  a  vote 
for  or  against  the  amendment ;  and  (2)  that  the  ballot  should  be  so  arranged 
that  every  failure  to  vote  on  an  amendment  counted  as  an  affirmative  vote. 
How  much  better  not  to  insert  such  requirements  than  to  have  to  resort  to 
such  devices ! 

2  Arkansas,  Colorado,  Illinois,  Indiana,  Kansas,  Kentucky,   Montana, 
New  Mexico. 

3  New  Hampshire,  New  Jersey,  Pennsylvania,  Tennessee,  Vermont. 


142          AMERICAN   STATE   CONSTITUTIONS 

can  be  made,  and  seven 1  from  these  two  sets  are  so  severe 
in  their  limitations  that  amendments  can  be  made  only 
with  great  difficulty.  While  it  is  fairly  well  understood 
throughout  the  United  States  by  precedent  and  decision 
that  the  executive  has  no  right  of  veto  over  legislative 
actions  respecting  conventions  or  amendments,  yet  Ala- 
bama, Kentucky  and  Delaware  make  assurance  doubly 
sure  by  saying  so. 

Constitutions  regularly  provide  that  when  legislatures 
pass  amendments  the  vote  must  be  by  yea  and  nay  and 
recorded.  Provision  is  also  made  for  publication  for  a 
certain  specified  number  of  weeks  or  months  before  the 
election.  Publication  is  usually  required  to  be  through  the 
newspapers,  in  each  county  of  the  state,  but  may  be  "  after 
such  publication  as  may  be  deemed  expedient."  The 
length  of  time  and  method  of  publication,  are  frequently  left 
to  the  discretion  of  the  legislature.  But  Oregon  has  set  the 
fashion  for  a  "voter's  pamphlet."  This  system  of  publica- 
tion provides  that  each  amendment  (or  bills  subject  to 
referendum)  have  appended  a  pro  and  con  argument  for  the 
information  of  the  voter,  and  that  the  whole  series  of  referred 
laws  with  explanations,  be  printed  and  mailed  to  each  voter 
before  the  election. 

REVISION 

All  but  twelve  2  of  the  constitutions  expressly  make  men- 
tion of  a  convention  for  the  purposes  of  revision.  It  is  now 
considered  far  better  to  do  so.  Although  the  best  authorities 

1  Illinois,  Indiana,  New  Hampshire,  New  Jersey,  Pennsylvania,  Tennessee, 
Vermont.     For  a  study  of  the  amending  attempts  of  Illinois,  see  article, 
Am.  Pol.  Sc.  Review,  Vol.  V.  3.  The  Working  of  the  State  Wide  Referendum 
in  Illinois,  by  C.  O.  Gardner. 

2  Massachusetts,   Connecticut,   Vermont,   Rhode  Island,   New  Jersey, 
Pennsylvania,   Mississippi,   Louisiana,   Texas,   Arkansas,   Indiana,   North 
Dakota. 


AMENDMENT  AND   REVISION  143 

assert  that  states  can  call  conventions  under  general  leg- 
islative powers,  and  nearly  all  have  done  so  one  or  more 
times,  yet  it  is  far  safer  to  insert  the  provision  expressly, 
with  such  safeguards  as  will  allow  the  use  of  a  convention 
whenever  necessity  demands.  In  one  state  only  (Rhode 
Island)  is  there  doubt  about  the  matter.  Its  supreme  court 
in  1883,  when  requested  by  the  senate  for  an  opinion,  in  its 
reply  concluded  that  under  the  state  constitution  a  con- 
vention could  not  be  called.  Judge  Jameson,  however,  in 
his  great  work,  On  Constitutional  Conventions,1  in  discus- 
sing this  opinion  reaches  the  opposite  conclusion.  Seven 
states  provide  that  the  question  of  calling  a  convention  must 
be  submitted  at  stated  intervals,  every  twenty  years  (Mary- 
land, Ohio,  Oklahoma,  New  York),  sixteen  years  (Michi- 
gan) ,  ten  years  (Iowa) ,  and  seven  years  (New  Hampshire) ; 
but  in  addition  to  a  set  year  it  is  better  to  insert  as  four  of 
them  do  "and  also  at  such  times  as  the  legislature  may  by 
law  provide." 

When  constitutions  authorize  a  convention,  the  usual  pro- 
cedure is  that  the  legislatures  submit  the  question  to 
referendum.  Seventeen  of  the  states  require  that  the 
referendum  be  authorized  by  a  two-thirds  vote  of  each 
house,  fourteen  require  a  majority  and  one  a  three-fifths 
vote.  New  Mexico  makes  it  three-fourths  for  twenty-five 
years  and  then  two- thirds ;  the  New  Hampshire  referendum 
goes  automatically  to  the  voters  without  action  by  the 
legislature ;  Maine  and  Georgia  authorize  their  legislatures 
to  call  conventions  without  referenda.  The  real  difficulty 
in  calling  a  convention  arises  from  the  wording  in  regard  to 
the  referendum  vote.  No  matter  how  much  interest  there 
may  be  in  a  state  on  the  question,  it  is  simply  impossible 
to  get  a  much  larger  vote  on  the  referendum  than  from  about 

fourth  ed.,  pp.  601-15. 


144          AMERICAN   STATE   CONSTITUTIONS 

one-half  to  two-thirds  of  the  usual  vote  at  a  general  election. 
If  therefore  a  constitution  provides  that  a  "  majority  of  the 
voters  of  the  state/'  or  "a  majority  of  all  the  voters  voting 
at  a  general  election"  must  vote  for  a  convention,  that 
state  might  as  well  almost  give  up  all  thought  of  ever  hold- 
ing a  convention.1 

Seventeen  states  have  such  requirements  and  in  conse- 
quence can  hold  conventions  if  at  all  only  after  years  of 
agitation  and  expense ;  seventeen  other  states  more  wisely 
word  the  requirement  a  "majority  of  those  voting  thereon," 
and  thereby  avoid  future  trouble.  Most  of  the  constitu- 
tions (23)  require  that  the  referendum  be  submitted  at  a  gen- 
eral election,  but  eleven  leave  the  time  to  the  legislature  or 
provide  for  submission  either  at  a  general  or  special  election. 
Experience  shows  that  it  is  safer  to  specify  the  basis  of 
representation  in  the  convention.  It  should  never  be  the 
same  as  the  legislature  itself,  though  four  states  have  such 
a  provision,  Maryland  for  example.  Seventeen  constitu- 
tions use  the  house  as  the  basis ;  requiring  that  it  be  equal 
in  membership  to  that  of  the  house  (Nebraska  for  example), 
or  double  (Wyoming),  or  based  on  population  (Georgia). 
Delaware  uses  the  house  basis  and  adds  two  from  each 
county,  but  there  are  three  counties  only  in  the  state. 
Three  require  that  it  be  twice  that  of  the  senate  (Illinois, 
Colorado,  Missouri) ;  Michigan,  three  times  that  of  the 
senate ;  and  New  York  requires  that  it  be  three  times  that 
of  the  senate  plus  fifteen  elected  at  large.  In  the  earlier 
years  of  our  history  conventions  frequently  promulgated 

1  See  note  regarding  Illinois  on  page  142.  When  these  requirements  were 
originally  placed  in  the  constitutions,  they  were  entirely  proper  since  vot- 
ing was  viva  wee,  so  that  every  voter  naturally  voted  on  all  referenda. 
Since  the  adoption  of  the  printed  and  secret  ballot,  however,  and  also  of 
lists  of  registered  voters,  only  those  really  interested  in  referenda  vote  on 
them,  and  many,  being  ignorant  or  uninterested,  ignore  them. 


AMENDMENT  AND   REVISION  145 

constitutions  made  by  them  on  their  own  authority,  with- 
out referendum.  After  the  first  generation,  however,  the 
contrary  held  true  in  the  main  down  to  1890.  Since  that 
year  six  conventions  have  promulgated  constitutions  with- 
out referenda.1  Conventions  have  that  power  unless  re- 
strained by  local  precedent,  statute,  or  constitution,  and  for 
that  reason  sixteen  states  require  that  no  constitution  go 
into  effect  unless  ratified  by  the  people.  In  some  cases  they 
also  specify  the  vote,  as  in  the  case  of  a  convention,  viz., 
"a  majority  of  those  voting  thereon"  (10)  or  "a  majority 
of  the  electors  voting  at  the  election"  (6). 

THE  CONSTITUTIONAL  COMMISSION 

In  the  first  century  of  state  constitutions,  on  rare  occa- 
sions, and  in  recent  years,  more  frequently,  states  have 
made  use  of  commissions  for  purposes  of  constitutional 
amendment  and  revision.  A  constitutional  commission 
is  a  body  appointed  by  the  governor  under  legislative 
authority,  and  therefore  is  to  be  carefully  distinguished  from 
a  joint  legislative  committee  chosen  for  a  similar  purpose ; 
like  that,  for  example,  in  Louisiana  which  in  1894  submitted 
a  series  of  about  twenty  amendments  to  the  legislature. 
As  no  state  constitution  makes  provision  for  the  use  of  a 
constitutional  commission,  the  recommendations  from  such 
a  body  must  conform  to  the  constitution's  requirements  in 
respect  to  amendments.  This  is  a  serious  handicap,  for  a 
commission  must  work  with  and  under  the  legislature ; 
unlike  a  convention,  which  is  coordinate  with  or  superior 
to  a  legislature,  and  either  submits  its  work  directly  to  the 
electorate,  or  promulgates  it  on  its  own  authority.  This 

1  Mississippi,  South  Carolina,  Delaware,  Louisiana  on  two  occasions, 
Virginia.  Kentucky's  convention  submitted  the  constitution  to  referen- 
dum, .but  later  convened  and  made  further  changes  without  referendum. 


146          AMERICAN  STATE  CONSTITUTIONS 

subjection  on  the  part  of  the  commission  to  the  legislature 
compels  it  to  subordinate  its  own  wish  to  that  of  the  body 
to  which  it  finally  reports  its  work.  Commissions  therefore 
have  so  far  proved  themselves  to  be  mere  conveniences  to 
the  legislature,  not  mouthpieces  to  the  popular  will,  so  that 
they  do  their  best  work  when  they  make  no  attempt  to 
take  the  place  of  conventions  for  revision  purposes.  The 
following  commissions  have  had  part  in  the  amending  of 
constitutions  since  1870. 

New  York  in  1872,  handicapped  because  of  the  failure  of 
the  convention  of  1867,  appointed  a  commission  which 
made  selection  of  some  of  the  most  important  propositions 
that  had  come  before  the  convention  and  reported  these 
with  suitable  changes  as  a  series  of  amendments.  Most 
of  these  passed  the  ordeal  of  an  affirmative  vote  by  two  legis- 
latures and  the  electorate,  but  some  failed  to  receive  a  com- 
plete endorsement.1  The  report  of  a  Michigan  commission 
in  1873  was  virtually  a  revision  of  the  constitution  but  this 
was  rejected  at  the  polls  the  following  year.  Maine  in  1875 
had  a  commission  whose  suggestions  were  in  part  adopted 
and  became  amendments  to  the  constitution.  In  1881  New 
Jersey  made  use  of  a  commission  but  its  report  was  never 
finally  acted  on.  Rhode  Island  in  1897  appointed  a  com- 
mission which  conservatively  revised  the  constitution.  The 
revision  met  the  approval  of  two  legislatures,  but  was 
rejected  at  the  polls,  November  1898  and  again  in  June 
1899  when  resubmitted.  In  1912  another  commission  for 
the  same  purpose  was  appointed  and  made  a  report  to  the 
assembly  of  1915,  submitting  a  revised  constitution.  This 
report  under  the  constitution  must  meet  with  approval  by 
two  assemblies  and  a  referendum  vote  in  1917.  Vermont 
in  1908  made  use  of  a  commission  for  the  suggestion  of 

1  See  page  80. 


AMENDMENT  AND   REVISION  147 

amendments,  most  of  which  were  finally  accepted;  and 
North  Carolina  in  1912  appointed  a  commission  which  in  the 
following  year  proposed  fourteen  amendments  to  a  special 
session  of  the  legislature.  Ten  of  these  in  substance  were 
accepted  and  were  submitted  to  vote  in  November  1914 
but  were  all  rejected  owing  to  the  requirement  of  a  "  ma- 
jority of  votes  cast  at  a  general  election."  From  these 
results  it  is  obvious  that  as  an  aid  to  a  legislature  a  com- 
mission may  have  its  use,  but  as  a  substitute  for  a  conven- 
tion, for  revision  purposes,  it  has  so  far  proved  to  be  a  flat 
failure. 

THE  CONSTITUTIONAL  INITIATIVE  1 

Since  1902  a  new  device  for  constitutional  amendment  has 
worked  its  way  into  some  state  constitutions  and  seems 
destined  to  become  a  definite  part  of  American  procedure 
for  the  process  of  amendment.  This  new  method  started 
with  Oregon  in  the  form  of  the  constitutional  initiative  and 
referendum.  That  state  it  will  be  remembered  had  a  con- 
stitution impossible  of  amendment  by  the  procedure  fixed  by 
its  convention  of  1857,  but  in  1902  by  means  of  a  vigorous 
campaign  it  managed  to  pass  this  measure  as  an  amendment 
and  has  been  busy  ever  since  in  revising  its  ancient  docu- 
ment. Its  success  stimulated  others  to  make  the  same  ex- 
periment, —  an  excellent  illustration  of  the  eager  adoption 
by  the  states  of  the  best  results  of  political  laboratories  - 
so  that  there  are  now  twelve  states  2  having  in  their  con- 
stitutions this  provision  and  others  that  have  already  taken 
partial  action.  From  the  results  of  their  successes  and 

1  See  pages  215-222. 

2  Oregon,  1902;  Oklahoma,  1907;  Missouri,  Michigan,  1908;  Arkansas, 
Colorado,  1910;  Arizona,  California,  1911 ;  Nevada,  Nebraska,  Ohio,  1912; 
North  Dakota,  1914.     In  1913  Michigan  broadened  and  simplified  the  pro- 
vision inserted  by  the  convention  of  1908. 


148          AMERICAN  STATE  CONSTITUTIONS 

failures  is  evolving  a  sort  of  pattern  for  future  amendments, 
since  it  is  a  safe  prophecy  to  assert  that  this  method  has 
become  a  permanent  addition  to  American  procedure  in  the 
amendment  of  constitutions. 

The  basis  for  this  system  is  the  insertion  in  the  constitu- 
tion of  a  definite  provision  reserving  to  the  people  (the 
electorate)  the  right  to  initiate  amendments  to  the  consti- 
tution. This  right  is  exercised  through  a  petition  presented 
not  later  than  four  months  before  an  election  and  signed  by 
a  definite  per  cent  of  voters,1  who  request  that  there  be  sub- 
mitted to  the  voters  as  a  whole  the  amendment  proposed  in 
the  petition.  This  initiative  is  direct,  if  it  goes  to  the  secre- 
tary of  state,  making  it  his  duty  to  verify  the  signatures 
and  to  submit  the  proposed  amendment  to  referendum  vote 
at  the  next  general,  or  special  election.  It  is  indirect  if  it 
is  presented  to  the  legislature  for  action  either  in  the  form  of 
approval,  disapproval,  or  modification.  In  the  last  case 
the  legislature  may  submit  an  alternative  proposition. 
Provision  is  then  made  for  an  obligatory  referendum,  the 
action  of  the  legislature  of  course  affecting  the  vote  one  way 
or  the  other.  Since  the  direct  form  omits  action  entirely 
on  the  part  of  the  legislature,  it  is  not  so  much  a  petition 
as  an  order,  or  mandate,  instructing  an  official  to  perform 
a  set  task,  without  the  exercise  of  discretionary  power  on 
his  part.  The  indirect  form  may  be  considered  as  voiced 
in  the  potential  rather  than  in  the  imperative  mode,  since 
it  politely  permits  the  expression  of  opinion  on  the  part  of 

1  This  per  cent  varies  from  five  or  eight  per  cent  to  fifteen  or  twenty- 
five  per  cent.  Eight  per  cent  is  favored  and  California  has  a  requirement  of 
eight  per  cent  for  the  direct  or  five  per  cent  for  the  indirect.  Now  that 
California  has  adult  suffrage  even  these  per  cents  will  involve  much  labor 
in  securing  signatures  to  petitions,  since  the  voting  lists  include  about  a 
million  voters.  Some  demand  the  per  cent  in  a  certain  number  of  districts ; 
Missouri,  e.g.,  five  per  cent  in  two-thirds  of  the  congressional  districts,  but 
this  is  not  generally  favored. 


AMENDMENT  AND   REVISION  149 

the  legislature.  As  long,  however,  as  there  is  a  compulsory 
referendum  -coupled  with  the  indirect  initiative,  it  ulti- 
mately leads  to  the  same  end  as  the  direct,  though  it  may 
cause  a  delay  of  a  year  or  two  if  the  legislature  is  at  all 
inclined  to  be  dilatory  in  action.  Properly  the  governor's 
veto  should  not  apply  to  initiated  amendments  but  some 
constitutions  avoid  dispute  by  forbidding  him  to  exercise 
his  veto.  An  amendment  of  this  sort,  prohibiting  the  gov- 
ernor to  veto,  or  the  legislature  to  repeal  initiative  and 
referendum  measures,  was  passed  by  Arizona,  1914. 

The  referendum  vote  is  preceded  of  course  by  some  re- 
quirement for  publicity,  which  may  take  the  expensive  and 
inefficient  form  of  newspaper  advertising ;  or  on  the  other 
hand  may  be  required  to  be  through  the  so  called  "  publicity 
pamphlet,"  or  "voter's  guide,"  containing  the  text  of  all 
referenda,  with  pro  and  con  arguments  attached.1  A  copy 
of  this  is  then  mailed  to  all  the  voters  in  the  state  in  time 
sufficient  to  enable  them  to  study  the  proposed  amendments 
(or  laws)  so  as  to  form  a  definite  opinion  on  their  merits. 
The  ratifying  vote  may  be  taken  at  a  special  election  if  so 
designated,  or  at  the  next  general  election;  the  usual  re- 
quirement is  that  each  measure  goes  into  effect  when  ratified 
by  a  majority  of  those  voting  thereon.2  As  a  rule  there  is  no 
limitation  on  the  number  of  amendments  to  be  initiated, 
though  restrictions  like  that  in  the  Amending  Article  of 
Arkansas,3  should  be  carefully  noted. 

1  This  may  be  required  by  the  amendment  or  left  to  legislative  discretion ; 
this  method  of  publication  is  favored  and  is  considered  far  more  effective. 

2  If  the  referendum  must  receive  "a  majority  of  votes  cast  at  the  election," 
few  can  ever  be  ratified,  unless  the  party  ballot  endorsement  system  (of 
Nebraska)  is  used  or  a  special  election  designated.     Oklahoma  has  such  a 
requirement  and  defeats  disliked  amendments  by  referring  them  to  a  general 
election,  but  passes  others  by  calling  a  special  election;  the  "grandfather" 
amendment,  for  example. 

3  "But  no  more  than  three  amendments  shall  be  proposed  or  submitted 
at  the  same  time." 


CHAPTER  XII 

SUFFRAGE  AND  ELECTIONS 

SUFFRAGE 

THE  states  have  the  right  to  declare  in  their  constitutions 
who  shall  exercise  suffrage  within  their  several  jurisdictions. 
The  restrictions  on  this  power  in  the  national  constitution 
are  simple  and  few  in  number.1  The  democratic  tendency 
is  shown  by  the  fact  that,  whereas  in  the  revolutionary 
period  the  privilege  of  suffrage  was  held  by  less  than  six 
per  cent  of  the  population,  it  is  now  held  by  over  twenty 
per  cent.  The  per  cent  was  even  larger  in  1870,  but  restric- 
tions have  since  crept  in. 

It  was  once  common  in  thinly  settled  states  to  allow  aliens 
who  had  taken  out  their  first  naturalization  papers  to  vote 
even  in  national  elections.  Seven  states  only  still  retain  this 
provision ; 2  eight  have  changed  within  the  last  few  years.3 
Some  of  the  seven  would  likely  change  if  their  constitutions 
could  be  amended  with  ease,  for  the  tendency  is  to  reserve 
suffrage  privileges  for  full-fledged  Americans  only. 

An  educational  qualification  is  rapidly  passing  into  our 
constitutions  through  a  belief  that  voters  should  be  intelli- 
gent, and  that  this  on  the  whole  is  best  indicated  by  the 

1  Article  I,  Section  2 ;   Article  IV,  Section  2 ;  Amendment  XIV,  Section 
i ;  Amendment  XV. 

2  Arkansas,  South  Dakota,  Indiana,  Texas,  Kansas,  Missouri,  Nebraska. 

3  Florida,   Michigan,   Minnesota,   Alabama,   Colorado,  North  Dakota, 
Wisconsin,  Oregon. 

150 


SUFFRAGE  AND   ELECTIONS  151 

ability  to  read  and  write.  Such  a  restriction  of  course  would 
be  undemocratic  if  not  coupled  with  provisions  for  a  free 
and  general  education.  Sixteen  states  now  have  educa- 
tional restrictions,  and  these  should  be  considered  in  two 
sets.  Nine  states  compose  the  first  set ; 1  two  require  ability 
to  read  English  (Connecticut  and  Wyoming) ;  two  to  read 
and  speak  English  (Washington  and  Oklahoma) ;  and  the 
other  five  to  read  English  and  write  the  name.  The  other 
set  consists  of  seven  southern  states  which  have  an  educa- 
tional qualification  as  one  of  several  alternatives.  The 
details  2  to  these  alternatives  are  too  numerous  to  specify, 
but,  with  the  exception  of  Mississippi  and  Virginia,  which 
require  the  ability  to  read  or  understand,  and  Georgia, 
which  requires  the  ability  to  read  and  understand,  all  require 
the  ability  to  read  and  write,  Louisiana  making  the  proviso 
that  it  may  be  in  English  or  in  the  mother  tongue.  There 
are  two  other  states,  Colorado,  North  Dakota,  which  by 
constitution  give  discretionary  powers  to  their  legislatures, 
in  respect  to  an  educational  qualification. 

The  chief  restriction  on  suffrage  in  earlier  days  was  the 
property  qualification.  This  still  survives  in  many  states 
in  the  form  that  referenda  involving  the  expenditure  of 
money  shall  be  voted  on  by  taxpayers  only.  Aside  from 
this,  the  property  qualification  by  1890  had  entirely  dis- 
appeared from  the  United  States  except  in  Rhode  Island, 

1  Connecticut,  1855  and  1897;    Massachusetts,  1857;    Wyoming,  1889; 
Maine,  1893;   California,  1894;  Washington,  1896;  Delaware,  1897;  New 
Hampshire,  1903 ;   Oklahoma,  1910. 

2  Mississippi,  1890,  Sections  241-245,  249,  251.     South  Carolina,  1895, 
Article  II.     Louisiana,  1898,  1913,  Articles  197-199.     Alabama,  1901;  Sec- 
tions 177,  178,  180-182.     Virginia,  1902,  Article  II.     North  Carolina,  1902, 
Article  VI,  Section  4  (Amendment).     Georgia,  1908,  Article  II  (Amend- 
ment).    Note  also  the  following:  Texas,  1902,  amendment  requiring  pay- 
ment of  poll  tax  by  February  first ;  and  Oklahoma,  1910,  Article  III  (Amend- 
ment). 


152          AMERICAN  STATE  CONSTITUTIONS 

where  there  is  a  property  requirement  of  one  hundred  and 
thirty-four  dollars  for  suffrage  in  financial  town  meetings 
and  in  the  election  of  members  of  city  councils.  Five  con- 
stitutions in  their  bills  of  rights  formally  state  their  objec- 
tion in  declaring  that  the  holding  of  property  should  not  be 
considered  as  affecting  the  right  to  vote  and  hold  office. 
Since  1895  several  of  the  southern  states  have  introduced 
this  restriction  as  one  of  the  alternatives  for  suffrage.  It 
was  inserted  as  a  temporary  requirement  by  Virginia  in  1902 
and  is  a  permanent  requirement  in  the  constitutions  of  South 
Carolina,  Louisiana,  Alabama,  and  Georgia.  The  qualifica- 
tion is  the  possession  of  property  valued  at  the  minimum  of 
three  hundred  dollars,  but  in  Georgia  five  hundred  dollars. 
Those  interested  in  the  famous  temporary  provisions  in 
certain  southern  constitutions  intended  to  disfranchise  the 
negroes,  should  consult  the  suffrage  articles  of  Louisiana, 
North  Carolina  and  Oklahoma  for  the  "  grandfather " 
clause,1  and  of  Alabama,  Virginia  and  Georgia  for  the  "old 
soldier"  clause.2 

As  women  are  citizens  and  all  citizens  by  theory  are  en- 
titled to  the  same  privileges,  women  are  entitled  to  the 
suffrage  equally  with  men  unless  the  constitution  is  worded 
or  can  be  interpreted  otherwise.  Definite  agitation  for 
women's  suffrage  has  been  carried  on  since  1848,  but  in  state 
elections  small  progress  was  made  up  to  the  last  five  years. 
Eleven  states  and  one  territory  at  the  present  time  allow 
women  full  suffrage.3  Illinois  in  1913  voted  to  grant 

1  The  "  grandfather  article"  of  Louisiana  by  amendment  1912  was  re- 
newed temporarily  —  until  August  3ist,  1913. 

2  See  also  article  on  Negro  Suffrage,  by  John  C.  Rose,  Am.  Political 
Science  Review,  Nov.,  1906. 

'Wyoming,  1890;  Colorado,  1893;  Utah,  1896;  Idaho,  1896;  Wash- 
ington, 1900;  California,  1911;  Kansas,  Oregon,  Arizona,  1912;  Alaska, 
1913;  Nevada,  Montana,  1914. 


SUFFRAGE  AND  ELECTIONS  153 

women's  suffrage  for  statutory  offices.  Five  states  in  1914 
rejected  referenda  on  this  question,  viz.,  Nebraska,  Ohio, 
Missouri,  North  and  South  Dakota.  More  than  twenty 
states  in  addition  to  the  suffrage  states  allow  women  suffrage 
in  school  and  occasionally  in  other  matters.1  Four  states  2 
by  constitution  allow  women  taxpayers  to  vote  on  certain 
referenda  involving  expenditures.  Obviously  conventions 
in  considering  suffrage,  should  decide  what  privileges,  if 
any,  women  are  to  have,  and  then  should  state  them  in 
express  terms. 

Registration  is  now  a  common  form  of  restriction.  The 
former  prejudice  against  it  may  still  be  found  in  the  consti- 
tution of  Arkansas  which  declares  that  registration  shall  not 
be  a  prerequisite  for  voting.  This  is  the  only  state  retain- 
ing the  provision,  as  Pennsylvania  removed  it  in  1901  and 
West  Virginia  in  1902.  It  may  be  said  that  now  in  prac- 
tically the  entire  United  States  registration  in  some  form  or 
other  is  a  prerequisite  for  voting  in  state  wide  elections. 
For,  even  if  registration  itself  is  not  required,  the  prepay- 
ment of  a  poll  tax,  for  example,  is  a  sort  of  registration. 
About  twenty  constitutions  expressly  authorize  registration, 
though  legislatures  could  pass  such  laws  under  their  general 
powers  unless  restrained  by  some  provision  in  their  consti- 
tutions. The  restrictive  feature  in  registration  is  that  the 
person  who  claims  for  himself  the  privilege  of  suffrage  may 
be  required  to  present  himself  in  person,  by  a  certain  date, 
and  prove  his  right.  The  necessity  of  a  personal  application 
will  invariably  disfranchise  a  large  per  cent  of  the  voters, 
who  will  neglect  to  make  application.  This  will  prove 
to  be  especially  true  if  the  date  set  is  several  months  before 
an  election.  The  excitement  of  a  campaign  would  bring  out 

1  See  for  example  the  constitution  of  Minnesota. 

2  Iowa,  Kentucky,  Louisiana,  Michigan. 


i54          AMERICAN  STATE  CONSTITUTIONS 

many  who  otherwise  will  fail  to  register  if  the  date  set  is 
early  in  election  year.  If  the  proof  involves  the  presentation 
of  naturalization  papers,  or  tax  receipts,  it  may  be  assumed 
that  another  large  per  cent  of  voters  will  fail  to  appear.  If 
all  these  requirements  are  found,  viz.,  personal  application, 
long  in  advance  of  the  election,  accompanied  by  proof  of 
citizenship  and  of  the  payment  of  taxes,  the  list  of  voters 
may  easily  be  cut  in  half.  Add  an  educational  or  property 
qualification,  and  the  task  of  counting  voters  will  be  reduced 
to  a  minimum.  Space  will  not  allow  further  details,  but  a 
study  of  the  constitutions  of  the  southern  states  already 
referred  to,1  and  a  comparison  of  the  votes  cast  in  those 
states  before  and  after  the  passage  of  such  laws,  will  abun- 
dantly illustrate  the  utility  of  rigid  registration  laws  as  a 
,  means  of  restriction.  It  would  be  found  that  the  restric- 
tions now  in  use  reduce  the  voters  voting  to  a  percentage 
ranging  from  four  to  ten  per  cent  of  the  whole  population. 
These  same  constitutions 2  will  furnish  illustrations  of  that 
other  form  of  registration,  in  which  the  name  of  the  person 
once  registered  is  retained  on  the  lists  for  life  or  for  a 
specified  term  of  years,  the  lists  being  corrected  annually  or 
biennially  by  the  several  boards  of  registration.  It  must 
not,  of  course,  be  understood  that  registration  is  merely  a 
means  of  restriction.  It  is  intended  fundamentally  as  a 
safeguard  against  illegal  voting,  but  it  is  clearly  evident  that 
it  can  be  used  to  cut  down  considerably  the  number  of 
voters. 

Besides  these  restrictions  there  are  in  practically  all  con- 
stitutions prohibitions  of  suffrage  to  minors  under  twenty-one 

1  In  the  third  paragraph  of  this  chapter. 

2  South  Carolina,  Alabama,  Virginia.     Rhode  Island  has  the  same  pro- 
vision in  favor  of  owners  of  real  estate.     Montana,  Georgia,  Colorado, 
Oregon  and  Idaho,  and  possibly  other  states,  by  statute  provide  for  a  per- 
manent registration. 


SUFFRAGE  AND   ELECTIONS  155 

years  of  age,  to  idiots,  insane  persons,  and  persons  con- 
victed of  crime.  Some  specify  crimes  in  elections  and  most 
forbid  the  suffrage  to  those  guilty  of  dueling.  There  is  also 
always  a  restriction  in  the  form  of  a  requirement  of  residence 
within  the  state,  county  and  precinct.  In  the  forty-eight 
states  there  are  twenty-five  variations  in  the  times  set ! 
On  the  whole  it  may  be  said  that  the  average  preference  is 
one  year's  residence  in  the  state  (twenty-nine  states),  six 
or  three  months  in  the  county,  and  thirty  days  in  the  pre- 
cinct. Seven  states  require  a  two  years'  residence,  and 
eleven  states  six  months.  The  constitutions  also  regularly 
contain  a  provision  defining  under  what  conditions  a  resi- 
dence is  neither  gained  nor  lost.1  The  prepayment  of  taxes, 
property  or  poll,  as  a  form  of  restriction  has  already  been 
mentioned.  .  It  exists  in  a  vepy  few  states.  The  poll  tax 
must  be  prepaid  in  eight  states,2  usually  several  months 
before  the  election.  Six  additional  states  require  prepay- 
ment of  other  taxes.3  The  most  stringent  requirements 
will  be  found  in  the  constitutions  of  Mississippi,  Louisiana 
and  Virginia. 

ELECTIONS  AND  POLITICAL  PARTIES 

Fifteen  of  the  constitutions  include  elections  along  with 
suffrage,  under  some  common  title,  such  as  Suffrage  and 
Elections.  Two  (Rhode  Island  and  Kansas)  have  separate 
articles  for  each  subject  and  the  others  as  a  rule  scatter 
provisions  regarding  elections  throughout  the  constitutions. 
It  would  add  to  clearness  if  all  provisions  in  regard  to 

1  For  example  see  California,  II,  4. 

2  Alabama,  Arkansas,  Louisiana,  North  Carolina,  South  Carolina,  Vir- 
ginia, Texas,  Delaware,  in  some  cities  in  Kentucky. 

3  All ;    Georgia,  South  Carolina,  Tennessee,  Mississippi ;   Pennsylvania  a 
state  or  county  tax ;  in  Rhode  Island,  personal  property  voters  must  prepay, 
if  retained  on  the  property  voters'  list. 


156          AMERICAN  STATE   CONSTITUTIONS 

elections  and  political  parties  were  placed  together  under 
some  appropriate  heading,  especially  as  unusual  attention 
is  being  paid  to  such  matters  at  present. 

As  congress  in  1871  provided  that  elections  for  members 
of  the  house  of  representatives  should  take  place  in  even 
years,  on  Tuesday  after  the  first  Monday  in  November, 
states  have  tended  to  place  their  own  elections  on  the  same 
day  so  as  to  avoid  duplication  of  expense  and  work.  Four 
states,  however,  still  prefer  to  use  the  odd  years,1  so  as  to 
separate  state  from  national  issues.  The  last  to  change  from 
odd  to  even  were  Iowa  in  1904  and  Ohio  1905.  Four  states2 
still  hold  their  general  elections  in  months  other  than  No- 
vember, and  one  of  these  by  special  arrangement  holds  the 
national  election  at  the  same  time  (Maine  on  the  second 
-Monday  of  September).  One  state  retains  the  old-fash- 
ioned annual  general  election  (Massachusetts).  New  York 
and  New  Jersey  elect  their  lower  houses  annually ;  two  of 
the  newer  constitutions  3  (Alabama,  Louisiana)  provide  for 
a  quadrennial  election,  and  all  the  other  constitutions  pro- 
vide for  an  election  biennially. 

A  system  of  registration  for  voters,  a  system  of  nomina- 
tion, including  the  primary,  the  election,  including  the  form 
and  method  of  voting,  and  the  count,  are  all  matters  that 
properly  fall  under  the  jurisdiction  of  the  state  and  may 
be  mentioned  in  the  constitution  or  left  to  statutory  regu- 
lation. The  chief  requirement  found  in  constitutions  (in 
about  thirty-four)  is  that  voting  be  by  ballot.  Others 
authorize  it  by  law.  Congress  also  makes  this  requirement 
for  national  elections.  Since  the  introduction  of  the  Austra- 
lian ballot  system  there  is  a  tendency  to  say  secret  ballot 

1  Kentucky,  Maryland,  Mississippi,  Virginia.     Louisiana  also  holds  its 
session  in  even  years,  but  has  a  spring  (even  year)  election. 

2  Arkansas  and  Maine  (Sept.),  Georgia  (October),  Louisiana  (April). 

3  Mississippi  did  so  but  changed  to  biennial,  1912. 


SUFFRAGE  AND  ELECTIONS  157 

(ten  states).  As  the  voting  machine  is  not  a  ballot,  states 
desirous  of  using  this  mechanism,  yet  having  a  ballot  require- 
ment, must  add  an  amendment  specifying  a  voting  machine 
or  some  other  device  "  provided  that  secrecy  in  voting  be 
preserved."  1 

On  the  other  hand  there  has  recently  arisen  a  demand 
that  voters  necessarily  absent  from  their  domiciles,2  be 
allowed  an  opportunity  to  vote,  as  for  example,  was  done 
by  many  states  during  the  civil  war.  A  legislature  may 
under  its  general  powers 3  provide  for  the  casting  of  votes 
anywhere  within  the  state,  but  if  the  word  "secret"  ballot 
be  in  the  constitution,  an  amendment  may  have  to  be  made, 
so  as  to  permit  absentee  voting.  Such  an  amendment 
California  rejected  and  Michigan  adopted  when  submitted 
to  referendum  in  November,  1914.  A  few  states  require 
that  the  ballots  be  numbered  and  a  few  others  require  that 
the  ballot  include  the  party  emblem  (for  example  Louisiana) 
or  on  the  other  hand  that  the  names  of  candidates  be  ar- 
ranged alphabetically  (Virginia,  Wyoming).  Colorado  by 
a  recent  amendment  (1912)  forbids  the  use  of  party  emblems 
on  the  ballot. 

The  Australian  blanket  ballot  began  as  an  experiment  in 
Massachusetts,  1889.  Not  over  five  states4  still  retain  the 
older  methods  of  voting.  The  others  in  their  ballot  systems 
divide  between  the  party  column  ballot  (twenty-seven 
states),  and  the  alphabetical  arrangement  of  the  Massachu- 
setts ballot  (sixteen  states).  The  former  is  preferred  by 

1  See  for  example  Utah,  New  York,  Virginia;    and  recent  amendments 
to  constitutions  of  Pennsylvania,  Connecticut,  California,  Colorado  and 
Massachusetts. 

2  Soldiers  and  sailors  on  service,  students  in  universities,  and  commercial 
travelers. 

3  As  Kansas  (1911),  Missouri,  and  North  Dakota  (1913)  nave  done-     In 
1912  about  five  thousand  voters  in  Kansas  made  use  of  this  privilege. 

4  Missouri,  New  Mexico,  North  Carolina,  South  Carolina,  Georgia. 


158          AMERICAN   STATE   CONSTITUTIONS 

party  organizations  so  as  to  encourage  straight  party  ticket 
voting;  the  latter  is  a  sort  of  educational  qualification, 
tending  to  weed  out  the  votes  of  illiterate  and  ignorant 
citizens.  A  movement  for  a  non-partisan  ballot  is  develop- 
ing in  the  west,  in  California  for  example,  as  a  natural 
supplement  to  the  direct  primary.  The  " short  ballot" 
reform  is  also  making  vigorous  headway,  though  two  amend- 
ments of  that  sort  submitted  by  Ohio,  1913,  were  both 
defeated  at  the  polls. 

There  are  very  few  constitutional  provisions  in  regard 
i  to  the  primary  and  the  count,  such  matters  are  regularly 
left  to  legislatures.  Michigan's  new  constitution,  Article 
VI,  section  twenty,,  provides  for  a  board  of  state  canvassers 
having  an  ex  officio  membership.  Illustrations  of  recent 
provisions  in  respect  to  the  primary  may  be  found  in  Cali- 
fornia's amendment  of  1908  (Article  II,  section  two  and 
one-half)  or  Oklahoma's  constitution  (Article  III,  sections 
/  four,  five).  As  is  well  known,  over  half  of  the  states  now 
have  direct  primary  laws,  aiming  thereby  to  supersede 
the  caucus  and  the  convention,  and  to  bring  political  parties 
completely  under  the  control  of  the  state  through  regulation. 

Nearly  all  constitutions  contain  some  provision  against 
fraud  and  bribery,  but  up  to  recent  years  legislative  inge- 
nuity had  not  succeeded  in  making  a  really  effective  Cor- 
rupt Practices  act.1  In  the  last  ten  years,  however,  most 
of  the  states  have  given  this  matter  careful  attention,  and 
over  twenty  have  revised  their  statutes,  somewhat  after 
English  models,  and  at  last  efficient  and  excellent  laws  of 
this  sort  can  be  found  among  the  statutes  of  the  states. 

Political  parties  are  voluntary  associations  and  not  part 
of  the  state's  electional  machinery.  The  state  under  its 

1  See  Kentucky,  Delaware,  Maryland  for  older  illustrations  of  constitu- 
tional provisions  in  respect  to  bribery  and  corruption. 


SUFFRAGE  AND   ELECTIONS  159 

police  powers  has  the  right  to  regulate  them  but  should  not 
make  the  blunder  of  assuming  that  political  parties  represent 
all  voters.  If  a  legislature  for  instance  regulates  the  party 
primary  or  the  party  ballot,  it  must  arrange  that  indepen- 
dents also  be  able  to  express  their  choice  in  nomination  and 
on  the  official  ballot.  Any  departure  from  this  principle 
must  be  expressly  specified  in  the  constitution  or  run  the 
risk  of  being  declared  unconstitutional.  So  far  as  consti- 
tutions are  concerned  there  is  very  little  attempt  to  regulate  \ 
party  organization,  such  matters  being  left  to  statutes,  j 
Louisiana  in  Articles  200  and  215,  or  California's  Section 
on  the  primary,  already  alluded  to,  give  the  gist  of  what  few 
provisions  may  be  found  in  other  constitutions.  A  late 
development,  the  first  of  its  kind  in  American  constitutions,1 
is  Oregon's  amendment  of  1908  (Article  II,  section  16), 
providing  for  proportional  representation  through  the 
voter's  ''expression  of  his  first,  second,  or  additional  choices 
among  the  candidates  for  any  office."  Permission  is  also 
given  for  the  application  of  these  principles  "  to  nominations 
by  political  parties  and  organizations."  California  voted 
down  a  somewhat  similar  amendment  in  1914. 

1  Note,  however,  the  Illinois  system  of  minority  representation,  Article 
IV.  sections  7-8. 


CHAPTER  XIII 
THE   EXECUTIVE   DEPARTMENT 

A  FAVORITE  American  political  theory  is  that  of  the  sep- 
aration of  po,wers.  The  several  powers  of  government  are 
grouped  under  three  main  heads,  each  kind  placed  in  charge 
of  a  distinct  set  of  officials,  and  a  system  of  "  checks  and 
balances"  is  used  so  as  to  co-ordinate  and  unify  the  work  of 
government.  In  practice  these  divisions  cannot  really  be 
separate,  so  that  in  national  government  at  least  an  "  un- 
written constitution"  develops,  under  which,  for  example, 
the  executive  may  have  a  large  determining  voice  in  legis- 
lative policy. 

Executive  powers  properly  include  the  war  and  treaty 
power,  the  power  of  oversight,  under  which  is  placed  the 
veto  power,  and  the  power  of  appointment  and  supervision 
over  the  administrative  departments.  One  of  the  chief 
defects  in  our  present  state  constitutions  is  that  these  execu- 
tive powers  have  not  received  proper  attention.  The  theory 
of  separation  has  been  disregarded  and  the  legislature  has 
been  allowed  to  share  these  powers  with  the  executive,  with 
disastrous  results.  There  is  at  present  a  strong  centralizing 
tendency  in  economic  and  political  life,  and  one  effect  from 
this  is  increased  attention  to  the  proper  place  of  the  execu- 
tive in  government.  This  is  plainly  indicated  by  a  compari- 
son of  the  articles  entitled  The  Executive  Department. 

The  requirements  for  the  office  of  governor  are  practically 
the  same  in  all  the  states.  The  governor  must  be  at  least 

160 


THE  EXECUTIVE  DEPARTMENT  161 

thirty  years  of  age  (five  states  name  twenty-five  or  thirty- 
five  years),  a  citizen  of  the  United  States  for  a  period  varying 
from  five  to  twenty  years  (Maine  requires  that  he  be  native 
born),  and  a  resident  of  the  state  for  a  period  of  from  one  to 
ten  years.  If  the  election  results  in  a  tie,  the  procedure  is 
the  same  in  almost  all  the  states,  viz.,  the  legislature  in  joint 
session  selects  a  governor  from  the  leading  candidates.  The 
usual  procedure  is  modified  somewhat  in  five  states.1 
Georgia  and  Mississippi  still  require  a  majority  vote  for 
election,  but  all  others  a  plurality.  New  Hampshire,  1912, 
changed  from  a  majority  to  a  plurality. 

A  few  states  specify  his  salary  in  the  constitution,  others 
do  so  but  authorize  the  legislature  to  change  it,  and  the 
remaining  states  wisely  leave  the  matter  to  the  discretion  of 
the  lawmaking  body.  In  passing,  it  may  be  said  that  the 
increase  in  the  cost  of  living  with  other  reasons,  is  resulting 
in  a  steady  increase  in  salaries  paid  to  state  officials. 
Thirty  states  now  pay  the  governor  five  thousand  dollars  or 
more,  five  of  these  paying  $10,000  and  one,  $12,000;  only 
two  states  pay  less  than  three  thousand  dollars.  Seventeen 
states  place  restrictions  on  a  governor's  re-election,  the 
usual  form  being  a  prohibition  against  two  successive  terms ; 
two  states  forbid  him  to  be  a  candidate  for  the  United  States 
senate  while  in  office  (Alabama,  Utah),  and  New  Jersey  for- 
bids its  legislature  to  elect  him  to  any  other  office  "  during  the 
term  for  which  he  shall  have  been  elected  governor."  The 
term  of  office  is  four  years  in  twenty-two  states,  two  years  in 
twenty-four  states,  three  years  in  New  Jersey  and  one  year 
in  Massachusetts.  The  tendency  is  toward  the  longer 
term,  not  away  from  it,  though  New  Mexico  in  1914  changed 
from  a  four  to  a  two  year  term. 

1  Maine,  Massachusetts,  Vermont,  Georgia  and  Mississippi ;  this  last 
state  elects  its  governor  through  a  sort  of  electoral  college. 


1 62          AMERICAN  STATE   CONSTITUTIONS 

The  governor  has  certain  routine  duties  common  to  all 
states ;  he  represents  his  commonwealth  in  its  dealings  with 
other  states,  he  may  summon  the  legislature  in  special 
session  or  adjourn  it  in  case  of  disagreement,  he  "must 
take  care  that  the  laws  be  faithfully  executed,"  may  com- 
mission officers  and  nil  vacancies  pro  tempore,  and  is  the 
commander  of  the  military  and  naval  forces  of  the  state.1 
He  regularly  has  large  powers  in  pardoning,  which  he  exer- 
cises on  his  own  authority  or  partly  in  connection  with  the 
legislature  or  senate  (thirty- two  states)  or  by  the  aid  of  a 
board  (thirteen)  or  council  (three).  He  regularly  has  the 
power  to  make  formal  recommendations  to  the  legislature, 
and  may  request  information  under  oath,  or  opinions  in 
writing,  from  the  several  officers  of  administration.  Aside 
from  these  usual  powers,  which  require  no  special  mention, 
attention  should  be  given  to  (a)  the  veto  power  and  (b)  his 
power  in  administration. 

THE  VETO  POWER 

In  1788  two  states  only  (Massachusetts,  New  York)  gave 
the  veto  power  to  the  governor;  in  1914  North  Carolina 
alone  withholds  it.  The  need  of  an  efficient  check  on  legis- 
lation simply  compelled  the_charigeT_I JiiTEe~national  con- 
stitution^  a  veto  is  overridden  by  a  two-thirds  vote  of  both 
houses  of  congress ;  this  fraction  is  preferred  by  thirty-four 
states,  but  eight 2  specify  a  majority,  and  five  a  three-fifths 
vote.3  This  vote  must  be  by  yea  and  nay  and  recorded. 

1  Twenty-six,  even  scone  of  the  inland  states,  mention  navy;  Massachu- 
setts and  New  Hampshire  have  similar  quite  thrilling  and  sanguinary  para- 
graphs on  the  war  powers  of  their  governors  as  commanders-in-chief  and 
admirals  of  the  respective  forces  of  their  states. 

2  Alabama,   Arkansas,   Connecticut,   Indiana,   Kentucky,   New  Jersey, 
Tennessee,  West  Virginia. 

3  Delaware,  Maryland,  Nebraska,  Rhode  Island,  Ohio. 


THE   EXECUTIVE  DEPARTMENT  163 

Taking  warning  from  experience,  thirty-four  states  now 
allow  the  governor  to  veto  items  of  appropriation  bills  1 
and  three  of  these  also  allow  him  to  veto  part  or  parts  of  any 
bill.2  His  veto  power  in  theory  applies  to  bills,  or  bills  and 
resolutions  of  the  legislature,  and  is  not  supposed  to  be 
exercised  against  changes  in  the  constitution,  or  measures 
initiated  and  approved  by  the  electorate.3 

The  time  given  to  the  governor  for  the  consideration  of  a 
bill  varies  from  three  to  ten  days,  twenty-two  preferring 
five  days,  eleven  ten  days  and  the  others  three  or  six  days. 
If  adjournment  intervenes  between  the  sending  of  a  bill 
to  the  governor  and  its  return  approved  or  vetoed,  twenty- 
four  constitutions  declare  the  bill  passed  and  nineteen  de- 
clare it  not  passed.  Twelve  states  4  allow  the  governor  a 
period  of  from  three  to  thirty  days  to  decide  whether  or 
not  to  approve  such  bills  ;  twenty  states 5  allow  him  from 
five  to  thirty  days  to  file  objections  with  the  secretary  of 
state,  if  he  desires ;  and  eight  states  6  require  that  such  bills 
with  objections  be  referred  to  the  next  legislature  for  its 
consideration.  Alabama  and  Virginia  allow  the  governor 
to  propose  amendments  when  vetoing. 

The  constitutions  seem  to  be  in  doubt  whether  to  consider 

1  The  thirteen  states  not  yet  granting  this  power  are  Connecticut,  Florida, 
Indiana,  Iowa,  Maine,  Massachusetts,  Nevada,  New  Hampshire,  Oregon, 
Rhode  Island,  Tennessee,  Vermont,  Wisconsin,  all  old  constitutions.    New 
Hampshire  rejected  such  an  amendment  in  1912. 

2  Washington,  Virginia,  South  Carolina. 

3  Arizona,  for  example,  provides  that  "the  veto  power  of  the  Governor 
shall  not  extend  to  any  bill  passed  by  the  legislature  and  referred  to  the 
people  for  adoption  or  rejection." 

4  Alabama,  California,  Delaware,  Iowa,  Michigan,  Minnesota,  Missouri, 
Montana,  New  Mexico,  New  York,  Oklahoma,  Virginia. 

5  Arizona,  Arkansas,  Colorado,  Florida,  Idaho,  Illinois,  Indiana,  Ken- 
tucky, Nebraska,  Nevada,  North    Dakota,  Ohio,   Oregon,   Pennsylvania, 
Rhode  Island,  South  Dakota,  Utah,  Washington,  West  Virginia,  Wyoming. 

6  Florida,  Indiana,  Maine,  Mississippi,  Nevada,  Oregon,  South  Carolina, 
Washington. 


164          AMERICAN  STATE   CONSTITUTIONS 

the  veto  as  executive  or  legislative  in  kind ;  thirty- two  prefer 
to  place  it  under  the  executive  department  and  fourteen 
follow  the  national  constitution  in  classifying  it  under  legis- 
lative. Rhode  Island  has  it  among  the  amendments,  and 
one  state,  as  already  said,  allows  no  veto. 

This  power  of  veto  lodged  in  the  executive,  especially 
when  coupled  with  the  power  to  veto  items  and  to  approve 
or  disapprove  after  adjournment,  has  become  a  most  effec- 
tive restraint  on  legislative  action,  and  has  been  vigorously 
used  to  enlarge  executive  powers  and  to  conserve  public 
interests. 

ADMINISTRATION 

Thirty-five  of  the  states  have  lieutenant  governors,  and 
thirty-four  of  these  make  that  officer  president  of  the  senate. 
In  the  other  states  and  in  Massachusetts  the  senate  elects 
its  own  presiding  officer,  and  the  constitution  arranges  the 
order  of  succession  in  case  of  the  death  or  disability  of  the 
governor.  An  elaborate  paragraph  on  succession  may  be 
found  in  the  new  Alabama  constitution.  The  officers 
favored  for  the  succession  are  either  the  secretary  of  state, 
or  the  president  of  the  senate.  Three  of  the  New  England 
states  still  retain  the  old-fashioned  executive  council  (Mas- 
sachusetts, Maine,  New  Hampshire) ,  and  a  modification  of  it 
made  up  of  ex  officio  members  may  be  found  in  North  Caro- 
lina. Though  not  provided  for  by  constitution,  Iowa  has 
an  executive  council  made  up  of  the  chief  elective  officers 
of  the  state  and  having  duties  assigned  to  it  by  statute. 

The  power  of  the  executive  over  administration  has  during 
the  course  of  our  national  history  undergone  some  remark- 
able changes.  This  power  was  in  the  early  constitutions 
deplorably  weak,  since  in  those  days  legislatures  controlled 
administration  also.  The  present  constitution  of  Rhode 
Island  is  an  excellent  illustration  of  this  old-fashioned 


THE   EXECUTIVE  DEPARTMENT  165 

type.  As  governmental  business  multiplied  through  the 
growth  of  population  and  wealth,  legislatures  tried  to 
handle  these  increasing  duties,  first,  through  committees, 
temporary  and  then  permanent,  and  finally  through  the 
organization  of  departments,  boards  and  commissions. 
Most  of  our  states  are  still  in  this  stage  of  development. 
Every  new  line  of  activity  results  in  the  formation  of  a 
special  board  or  commission  until  these  can  be  counted  by 
the  score  in  almost  any  state,  a  joy  to  <the  spoils  politician, 
but  the  despair  of  every  taxpayer.1  Under  such  conditions 
the  administration  of  the  state  becomes  unwieldy,  wasteful, 
and  thoroughly  unbusinesslike.  Each  department,  board, 
or  commission  drifts  along  under  the  nominal  control  of  the 
legislature,  united  only  by  the  bond  of  a  common  affection 
for  the  state  treasury. 

This  evil  has  for  some  time  attracted  the  attention  of  the 
leaders  in  our  several  states,  so  that  there  is  at  present  a 
decided  movement  looking  towards  a  greater  efficiency  in 
administration  and  a  centralization  of  authority.  The 
" short  ballot"  movement,  for  example,  would  seek  to 
lengthen  terms  of  office  and  to  concentrate  appointing 
power  in  the  governor  in  place  of  too  numerous  elections. 
About  thirteen 2  states  also  have  appointed  commissions 
on  Economy  and  Efficiency  in  state  government.  The  gist 
of  their  recommendations  unquestionably  will  be ;  improved 
systems  of  accounts  and  auditing ;  a  demand  for  the  elimi- 
nation of  useless  and  parasitic  boards,  a  closer  coordination 

1  The  legislatures  of  thirty-five  states  in  1913  created  236  boards  or 
commissions,  abolished  79,  and  reorganized   12.      See,  Article  Am.  Pol. 
Sc.  Review,  VIII.  3.  pp.  431-436. 

2  Illinois,  Iowa,  Louisiana,  Massachusetts,  Minnesota,  Mississippi,  Ne- 
braska, New  Jersey,  New  York,  Ohio,  Pennsylvania,  South  Dakota,  Wis- 
consin.   These  vary  widely  in  powers  and  function.     See,  Rhode  Island 
Legislative  Bulletin,  Number  7. 


1 66          AMERICAN  STATE  CONSTITUTIONS 

of  those  that  remain,  and  a  centralization  of  authority  in 
the  governor  rather  than  in  the  legislature.  The  present 
trend  in  constitutions  is,  on  the  whole,  to  take  administra- 
tive power  from  the  legislature  and  transfer  it  partly  to  the 
electorate  but  chiefly  to  the  executive,  where  it  properly 
belongs.  The  methods  by  which  this  has  been  done  will 
now  briefly  be  indicated. 

Attention  has  already  been  called  to  the  tendency  toward 
a  four-year  term  and  a  larger  salary  for  governors.  The 
same  point  holds  true  in  respect  to  the  heads  of  the  impor- 
tant departments.  Their  terms  are  lengthening  and  their 
salaries  increasing.  In  the  case  of  the  treasurer  (seventeen 
states)  and  auditor  or  comptroller  (five  states)  there  is  the 
same  provision  against  re-election  for  successive  terms. 
Heads  of  departments,  instead  of  being  elected  by  legis- 
latures as  formerly,  are  now  almost  invariably  elected  by 
the  people,  as  may  be  seen  by  noting  the  systems  in  use  in 
the  several  states,  contained  in  the  American  Year  Book. 
In  a  very  few  states  l  one  or  several  of  these  heads  are  still 
chosen  by  legislatures,  and  by  contrast  in  a  few  states  2  the 
governor  has  that  privilege,  but  the  movement  sets  steadily 
in  the  direction  of  popular  election.  Nearly  all  constitu- 
tions forbid  a  state  officer  to  hold  a  position  of  trust  under 
the  federal  government  and  should  forbid  him  to  hold  more 
than  one  office  within  the  state.  (See  Florida,  Article  XVI, 
15.)  Again,  constitutions  regularly  specify  what  depart- 
ments must  be  organized,  and  what  powers  they  may 
exercise.  These  offices  in  almost  all  states  include  a  secre- 
tary of  state,  a  treasurer,  an  auditor  or  comptroller,  an 
attorney  general  and  a  superintendent  of  public  instruction. 

1  For  examples  see  Maine,  New  Hampshire,  New  Jersey,  South  Carolina, 
Tennessee,  Virginia. 

2  See  Maryland,  New  Jersey,  New  York,  Ohio,  Pennsylvania,  Texas. 


THE  EXECUTIVE  DEPARTMENT  167 

Another  department  is  common  enough,  though  going  under 
widely  varying  names.  Its  duties  in  general  are  indicated 
by  the  term  Internal  Affairs  (Pennsylvania).  Besides  these 
departments  many  constitutions  name  and  define  the  powers 
of  numerous  boards,  commissions,  or  bureaus,  intended 
chiefly  for  purposes  of  general  welfare,  and  for  supervision 
of  the  larger  economic  interests  of  the  state.  These  are 
becoming  so  numerous  that  a  check  should  be  put  on  so 
rapid  a  multiplication  of  semi-independent  boards,  bureaus, 
and  commissions.  Some  are  useless  and  others  could  be 
consolidated.  By  centering  responsibility  in  the  governor, 
efficiency  and  economy  would  become  possible,  but  his 
hands  should  be  strengthened  against  party  demands  by 
the  merit  system  of  appointment  and  tenure. 

Conventions  by  placing  such  matters  in  the  constitution 
have  deprived  legislatures  of  the  power  of  altering  them,  and 
to  that  extent  have  developed  an  administration  apart  from 
the  law-making  body.  The  newer  demand  is  that  this 
administrative  system  be  wisely  coordinated  and  central- 
ized. The  development  now  in  evidence  is  to  require  these 
several  departments  and  officials  to  report  semi-annually 
to  the  governor;  to  make  him  ex-officio  member  of  the 
several  commissions  (Utah  for  example) ;  to  authorize 
him  to  investigate  thoroughly  any  department  or  office  at 
his  discretion,1  especially  those  handling  the  finances  of  the 
State,2  and  to  place  in  his  hands  the  power  to  suspend  or 
remove  those  officers  who  seem  to  be  derelict  in  their  duties.3 
A  few  (nine)  add  to  such  powers  the  duty  of  presenting  to 

1  For  illustrations  of  this  see  Idaho,  Montana,  Utah,  Wyoming. 

2  For  curious  provisions  see  Georgia,  Kentucky,  Maryland,  and  Mis- 
sissippi. 

3  See,  for  example,  New  Mexico ;  Article  V,  Section  5.     Note  also,  Article, 
Removal  of  Public  Officers.     A  Ten- Year  Review.     Am.  Pol.  Sc.  Review. 
Nov.  1914,  pp.  621-29. 


i68          AMERICAN  STATE  CONSTITUTIONS 

the  legislature  at  the  beginning  of  each  session  the  budget  of 
anticipated  receipts  and  expenditures.  There  is  also  a 
strong  tendency  to  define  more  generously  his  power  in 
removal  and  to  increase  his  power  of  appointment  in  the 
case  of  officials  other  than  heads  of  departments.  This 
power  he  regularly  exercises  by  and  with  the  advice  and 
consent  of  the  senate,  though  the  wisdom  of  this  require- 
ment may  be  questioned.  It  is  impossible  to  specify  these 
details  by  states  in  so  short  a  space  but  a  comparative  study 
would  show  great  differences  in  the  extent  of  executive 
power.  In  late  years  the  trend  towards  centralization  may 
be  observed  in  such  states  as  Oregon,  Kansas,  Nebraska  and 
Ohio ;  but  compare,  for  example,  some  of  the  newer  consti- 
tutions such  as  those  of  Alabama,  Idaho,  Montana,  New 
York,  Utah  and  Wyoming ;  and  an  older  set,  such  as  those 
of  Colorado,  Maryland,  Missouri,  Texas  and  West  Virginia ; 
and  a  still  older  set,  such  as  those  of  Iowa,  and  Wisconsin ; 
and  finally  the  New  England  set  as  an  example  of  executive 
power  at  its  minimum. 

The  reason  for  the  longer  term  and  larger  salary  of  the 
modern  governor  is  now  obvious.  His  duties  are  so  onerous 
that  he  must  be  adequately  paid  and  time  be  given  him  to 
show  his  capacity  as  head  of  the  administration.  By  cen- 
tralizing administrative  responsibility  on  his  shoulders  his 
office  becomes  powerful,  commands  respect  and  is  eagerly 
sought  after  by  capable  men.  It  becomes  also  a  prize  in 
party  politics  and  for  that  reason  should  be  supplemented 
by  an  adequate  civil  service  law  modeled  after  one  of  the 
rival  systems  of  either  Massachusetts  or  New  York.1  In 
short,  the  loosely  coordinated  administrative  system  of  the 

^ee  Article  V,  Section  9,  New  York  constitution.  Within  the  last 
three  years  over  a  third  of -the  states  have  either  adopted  civil  service  rules 
or  revised  the  systems  already  adopted. 


THE   EXECUTIVE  DEPARTMENT  169 

revolutionary  period  is  at  last  disappearing,  and  in  its  place 
the  states  are  beginning  to  centralize  administrative  powers 
into  the  governor's  hands,  as  in  the  national  system. 

Future  conventions  should  pay  much  more  attention  to 
the  proper  organization  of  the  administration,  which  might 
be  arranged  in  a  separate  article  apart  from  the  executive. 
A  beginning  in  this  direction  already  has  been  made  in  eight 
constitutions,1  but  imperfectly,  as  these  were  prepared 
before  present  evils  had  fully  developed.  A  convention  that 
would  originate  a  carefully  studied  system  of  reorganized 
administration,  would  start  a  reform  that  would  rapidly 
pass  into  the  constitutions  of  other  states,  since  all  begin  to 
realize  the  need  of  improvement. 

THE  RECALL 

Undoubtedly  the  most  significant  trend  in  state  consti- 
tutions is  the  steady  growth  in  the  power  of  the  electorate 
to  control  and  dominate  the  several  divisions  of  government. 
In  recent  years  this  has  taken  the  form  of  the  initiative  and 
the  referendum,  and,  since  1908,  the  recall.  The  citizens 
of  Oregon,  in  seeking  to  get  control  of  their  government, 
thought  it  necessary  to  assert  their  right  to  discharge  at 
discretion  from  public  service  any  officer,  judge,  or  repre- 
sentative in  lawmaking  body.  An  initiatory  petition  was 
therefore  submitted  to  the  voters  and  passed,  November, 
1908,  asserting  the  right  of  the  voters  to  recall  any  public 
officer  of  the  state,  and  providing  methods  for  so  doing. 
In  1911  California  adopted  a  similar  provision  but  with 
improvements  that  make  its  system  superior  to  the  pio- 
neer method  of  Oregon.  In  1912  Arkansas,  Nevada  and 

1  See  Arizona,  Article  VIII ;  Article  VI,  Indiana,  Wisconsin,  Oregon ; 
Georgia,  Article  V,  Section  II ;  Colorado,  Article  XII ;  New  Jersey,  Article 
VII;  and  Tennessee,  Article  VII. 


1 70          AMERICAN  STATE   CONSTITUTIONS 

Colorado  adopted  the  state  wide  recall;  and  two  other 
states,  Michigan,  Idaho,  adopted  it  but  excepted  judicial 
officers.  In  1914  four  other  states  voted  on  referenda, 
providing  for  the  recall,  but  it  passed  in  Louisiana  and 
Kansas  only,  both  excepting  judges.1 

This  remarkable  assertion  of  authority,  it  is  said,  is  not 
intended  for  frequent  use  or  a  radical  exercise  of  power,  but 
rather  as  an  extension  of  the  principle  of  democracy ; 
placing  on  record  in  the  fundamental  law,  a  definite  state- 
ment of  the  authority  of  the  electorate  over  every  public 
servant,  but  assuming  that  the  occasions  for  its  use  would 
be  few  and  far  between. 

The  recall,  under  the  systems  in  use,  applies  to  "  every 
elective  officer,"  or  to  " every  public  officer"  including 
therefore  those  appointed  as  well  as  those  elected.  The 
provisions  inserted  in  the  constitution  regularly  apply  also 
to  county,  township  and  municipality,  as  well  as  to  state 
officers ;  though  it  may  here  be  said  that  the  use  of  the  recall 
against  local  officials  antedated  its  use  by  the  state.  The 
city  charter  of  Los  Angeles,  California,  by  amendment  in  1893 
introduced  the  recall  principle  into  municipal  government 
and  it  is  now  widely  in  use,  especially  in  connection  with 
the  commission  form  of  city  charter.  The  recall  takes  the 
form  of  a  petition  to  be  signed  by  a  given  fraction  of  the 
voters  of  the  .state,  eight  per  cent  for  example,  or  by  a 
larger  fraction  of  a  locality  or  district,  twenty  or  twenty- 
five  per  cent.  The  petition  asks  for  a  referendum  and  a 
special  election.  The  referendum  is  on  the  question 
whether  a  designated  officer  shall  be  recalled,  assuming 
that  he  does  not  resign  before  the  day  set ;  the  election  is 
for  the  purpose  of  filling  the  vacancy  if  the  officer  should  be 
recalled.  The  law  usually  provides  that  no  petition  may  be 

1  It  was  defeated  in  Minnesota  and  Wisconsin. 


THE   EXECUTIVE  DEPARTMENT  171 

circulated  against  an  official  until  at  least  six  months  after 
he  has  assumed  office,  except  in  case  of  legislators.  The 
two  subjects  may  be  (i)  combined  into  an  election,  in  which 
the  official  is  a  candidate,  and  is  recalled  if  he  fails  to  receive 
a  plurality  over  his  opponent ;  or  (2)  they  may  be  voted  on 
separately  but  on  the  same  day,  with  the  requirement  that 
each  voter  must  vote  on  both  propositions,  the  recall  and  the 
choice,  if  his  vote  is  to  be  counted ;  or  (3)  the  recall  vote 
precedes  the  election,  which  takes  place  only  if  the  official 
is  recalled.  Provision  may  be  made  for  payment  of  the 
official's  election  expenses,  whether  sustained  or  not,  or 
only  if  sustained.  Both  the  Oregon  and  the  California 
systems  provide  for  publicity  of  reasons  pro  and  con  for  the 
recall. 


CHAPTER  XIV 
THE  JUDICIAL  DEPARTMENT 

THE  judiciary  is  the  department  of  our  government  which, 
up  to  recent  years,  has  undergone  fewest  changes  and  given 
most  satisfaction.  The  touching  confidence  of  old-time 
constitution  makers  in  the  wisdom  and  integrity  of  legislator 
and  judge,  may  still  be  seen  in  the  constitutions  of  the  New 
England  states,  which  dispose  of  the  subject  of  judicial 
organization  in  few  words,  leaving  it  almost  entirely  to  the 
discretion  of  the  lawmakers.  Contrast  these  with  recent 
constitutions  and  the  difference  is  marked.  One  of  the  chief 
sins  of  the  Louisiana  constitution  is  that  it  devotes  about 
twelve  thousand  words  to  the  courts  of  the  state  and  of  the 
city  and  parish  of  New  Orleans.  It  is  really  a  statute  under 
the  form  of  a  constitutional  article,  and  yet  can  be  amended 
only  by  a  slow  and  tedious  process.  But,  though  the  chief 
of  sinners  in  this  respect,  Louisiana  is  not  alone  in  this  tend- 
ency. The  rapid  multiplication  of  population  and  wealth, 
our  democratic  fondness  for  litigation  and  lawmaking,  with 
social  unrest  thrown  in  as  a  disturber  of  the  peace,  all  compel 
movements  for  the  reorganization  of  the  judiciary.  The 
effect  of  this  is  seen  in  the  addition  to  our  constitutions  of 
numerous  pages  devoted  to  the  judicial  department ;  for 
conventions,  filled  with  distrust  of  legislatures,  realize  that 
a  judicial  system  with  organization  and  functions  denned 
by  constitution  is  beyond  the  power  and  control  of  the  law- 
making  body. 

172 


THE  JUDICIAL  DEPARTMENT  173 

The  American  standard  of  judicial  organization  is  a  three- 
grade  system  of  courts,  consisting  of  a  supreme  court,  an 
intermediate  court  usually  known  as  a  circuit,  district  or 
county  court,  and  courts  of  the  justices  of  the  peace.  The 
jurisdiction  of  the  judges  of  the  highest  sets  of  courts  regu- 
larly extends  to  all  parts  of  the  state,  even  though  in  some 
cases  they  are  elected  by  districts. 

The  supreme  court  is  regularly  a  court  of  appeals,  usually, 
if  at  all,  having  original  jurisdiction  only  in  the  issuance  of 
original  and  remedial  writs ;  this  power  it  regularly  shares 
with  the  courts  next  lower  in  grade.  A  few  states  add  other 
jurisdiction.1  In  eight  states  the  supreme  court  is  called  the 
court  of  appeals,2  or  the  court  of  errors  (i),  or  the  court  of 
errors  and  appeals  (2) ;  confusion  arises  when,  as  in  New 
York,  the  supreme  court  is  not  a  supreme  but  a  district 
court.  In  Texas  the  supreme  court  has  a  separate  organ- 
ization for  civil  and  for  criminal  business.  Oklahoma 
authorizes  the  same  arrangement  at  legislative  discretion; 
but  an  amendment  in  1914  failed  of  passage,  providing  for 
a  single  court  system.  In  membership  the  supreme  court 
ranges  from  three  to  nine  members,  though  by  exception 
New  Jersey  has  sixteen.  The  favored  numbers  are  3,  5,  7  ; 
9,  13,  ii  states  having  these  numbers  respectively.  Rapid 
increase  of  judicial  business  in  many  of  our  states  during  the 
last  thirty  years  has  burdened  their  supreme  courts  beyond 
reason.  Relief  comes  easily  if  the  constitution  permits  the 
legislature  in  its  discretion  to  increase  the  membership  of 
the  court.  Failing  this,  a  temporary  makeshift  in  use 
is  to  authorize  a  supreme  court  commission,  so  as  to 
enable  the  court  to  catch  up  with  its  cases.  In  recent 

1  For  example,  California,  Illinois,  Indiana,  Nebraska,  North  Carolina, 
Pennsylvania  and  some  of  the  New  England  states. 

2  For  example  in  Kentucky,  Maryland,  New  Jersey,  New  York. 


174          AMERICAN   STATE   CONSTITUTIONS 

years  this  has  been  done  by  California,  Florida,  Montana 
and  Nebraska.  In  New  York  (amendment  1899)  justices 
of  the  supreme  (district)  court,  not  more  than  four,  may  be 
designated  by  the  governor  to  serve  temporarily  as  asso- 
ciate justices  of  the  court  of  appeals.  Another  possibility 
is  to  organize  a  system  of  intermediate  courts  of  appeal,1  but 
this  additional  grade,  in  cases  when  decisions  are  conflicting, 
may  add  to  the  expense  and  time  of  litigation.  Again,  there 
is  the  system  of  increasing  the  number  of  judges  and  allowing 
these  to  sit  in  two  or  more  divisions,  and  en  bane  only  when 
necessary  to  settle  disputes  or  in  especially  important  juris- 
diction. Still  another  possibility  is  shown  in  New  Hamp- 
shire (1901)  and  Rhode  Island  (1903)  which  have  organized 
each  a  superior  court,  having  part  of  the  jurisdiction 
formerly  confided  to  the  supreme  court.  Those  constitu- 
tions that  failed  to  include  some  such  provision  for  the  relief 
of  the  supreme  court  are  rapidly  placing  it  in  their  constitu- 
tions by  amendment.2  Wisconsin  has  had  to  change  the 
organization  of  its  supreme  court  three  times  by  amendment 
to  constitution;  in  1877,  1889,  1903. 

In  view  of  this  national  tendency,  it  would  be  well  if  all 
constitutions  hereafter  would  provide  an  adequate  system 
for  appellate  jurisdiction,  or  leave  to  the  legislature  some 
discretion  in  respect  to  the  organization  of  the  supreme 
court. 

Little  needs  to  be  said  in  regard  to  the  other  grades  of 
court.  There  are  wide  differences  in  organization,  and 
much  is  left  to  legislatures.  There  is  little  uniformity  in 
name  and  many  differences  in  jurisdiction.  Information 

1  For  example  in  Illinois,  Indiana,  Louisiana,  Missouri,  New  York,  Penn- 
sylvania, Tennessee,  Texas,  and  California  in  1904. 

2  See  for  example  Kansas,  1900 ;  Florida,  1903 ;  Colorado,  Alabama,  1904 ; 
Nebraska,  North  Dakota,  1908;  Mississippi,  1914,  though  a  question  as  to 
the  passage  of  this  amendment  has  gone  to  the  courts  for  decision. 


THE  JUDICIAL  DEPARTMENT  175 

on  such  matters  therefore,  must  be  sought  from  the  con- 
stitutions and  statutes  themselves  or  from  some  text  book 
on  the  subject.1 

TENURE  AND  APPOINTMENT 

Life  tenure,  and  appointment  through  legislature  or 
executive,  was  the  method  in  vogue  for  the  higher  judiciary 
at  the  beginning  of  the  nineteenth  century.  Only  one 
state,  Georgia,  at  that  time  elected  judges  for  its  higher 
courts  by  popular  vote.  The  tendency  is  entirely  the  other 
way  at  the  present  time.  Three  states2  still  retain  a  "good 
behavior"  tenure,  but  all  others  fix  a  definite  term.  A  long 
tenure  is  favored  by  four  other  states ; 3  the  remaining  states 
vary  from  two  years  (Vermont)  to  twelve,  twenty-two 
favoring  the  six-year  term ;  eight  and  twelve  are  the  periods 
next  favored.  A  class  system  is  in  use  in  over  two-thirds 
of  the  states,  the  number  of  classes  varying  with  the  period. 
By  this  system  of  retiring  a  part  only  of  the  bench  at  one 
time,  the  opinions  of  its  members  are  less  likely  to  be 
affected  by  political  considerations,  continuity  in  decision 
is  maintained,  and  candidates  for  election,  being  fewer  in 
number,  receive  more  attention.  The  usual  practice  is  to 
elect  these  at  large,  not  by  districts.  The  tenure  of  inferior 
judges  is  for  a  shorter  term;  if  the  supreme  justices  for 
example,  hold  for  six  years,  the  other  two  grades  of  judges 
hold  usually  for  four  and  two  years.  Theorists  regularly 
declaim  against  the  election  of  a  judiciary,  yet  the  practice 
and  experience  of  our  states  point  the  other  way.  The 
decisions  of  the  American  bench  compare  most  favor- 
ably with  similar  decisions  enunciated  by  appointed  judges 

1  For  example,  Governor  Baldwin's  The  American  Judiciary. 

2  Massachusetts,  New  Hampshire  and  Rhode  Island. 

3  Pennsylvania,  twenty-one  years ;  Maryland  and  Virginia,  fifteen ;  New 
York,  fourteen  years. 


i  y6          AMERICAN  STATE  CONSTITUTIONS 

elsewhere,  and  the  results  justify  the  practice.  As  a  sort  of 
concession,  however,  to  this  opinion,  there  are  movements 
in  several  states1  looking  towards  the  development  of  a 
system  of  non-partisan  nominations  and  elections  for  judges. 

Chief  justices  are  as  a  rule  so  designated  by  several 
methods,  among  which  may  be  mentioned,  (i)  that  justice 
having  the  shortest  unexpired  term,  (2)  by  election,  (3)  by 
choice  of  the  justices  themselves  or  (4)  by  seniority  of  service. 
Clerks  of  the  supreme  court  are  regularly  mentioned  in  the 
constitutions,  and  in  about  half  of  the  states  are  appointed 
by  the  courts;  in  a  few  states  they  are  elected  at  large. 
Judges  of  the  supreme  court  are  still  appointed  by  governor 
and  council  in  Maine,  Massachusetts  and  New  Hampshire ; 
in  Delaware,  Mississippi,2  and  New  Jersey  by  governor 
and  senate;  in  Rhode  Island,  Vermont,  South  Carolina 
and  Virginia,  by  the  assembly ;  and  in  Connecticut  by  the 
assembly  on  nomination  of  the  governor.  Georgia  in  1898 
(assembly)  and  Louisiana  (governor)  in  1904,  were  the  last 
to  change  to  the  elective  system.  The  other  thirty-seven 
states  elect  their  judges  and  show  no  tendency  in  the  other 
direction.  The  usual  provision  for  removal  is  by  vote  of 
the  assembly  (a  majority  or  two-thirds)  or  through  the 
governor  after  action  by  the  assembly,  or  by  impeachment. 
Four  states  by  constitution  fix  the  retiring  age  at  seventy 
years,  Connecticut,  Maryland,  New  Hampshire,  New  York. 

The  salaries  of  judges  are  far  less  frequently  specified  in 
the  constitutions  than  those  of  other  civil  officers.  Those 
that  do,  as  a  rule  give  the  legislature  power  to  modify  at 
discretion.  The  statutes  of  our  states  show  a  strong  tend- 
ency to  enlarge  salaries  paid  to  judges,  doubtless  because 

1  For  example,  in  Minnesota,  Idaho,  Iowa,  Kansas,  Nebraska,  Wisconsin 
and  Pennsylvania. 

2  An  amendment,  1914,  changing  to  election  by  popular  vote  probably 
passed,  but  is  in  controversy. 


THE  JUDICIAL  DEPARTMENT  177 

of  the  broader  learning  and  arduous  labor  demanded  under 
present  conditions  of  life.  The  rewards  of  law  practice  are 
now  so  great  that  capable  judges  cannot  be  obtained  except 
by  adequate  compensation.  The  salaries  range  from 
$14,000  (New  York)  to  $2,500  (Vermont).  About  three- 
fifths  of  the  states  pay  $5,000  or  less ;  the  others,  New  York 
excepted,  range  from  $5,000  to  $10,000. 

THE  JUDICIAL  RECALL 

The  most  important  development  of  recent  years  in 
connection  with  the  judiciary  is  the  movement  for  the  recall 
of  judges  and  of  judicial  decisions.  Oregon  in  1908  started 
the  discussion  by  providing  through  amendment  for  the 
possible  recall  of  "  every  public  officer,"  including  therefore 
judges.  California  in  191 1  adopted  the  same  provision,  and 
so  did  Arizona  in  making  its  first  constitution.  Congress 
however,  compelled  Arizona  to  omit  the  judicial  recall,  as  a 
condition  for  admission  to  the  Union.  But  when  in  the 
following  year  it  became  a  state,  it  promptly  reinserted  the 
provision  in  its  constitution  and  went  still  further  by 
passing  an  act  providing  for  an  advisory  recall  for  judges 
in  the  United  States'  court  in  the  district  of  Arizona,  and 
for  a  popular  recommendation  of  suitable  persons  to  the 
presidency  and  senate.  In  1912  Arkansas,  Nevada  and 
Colorado  adopted  the  general  recall,  and  the  last  named 
added  a  further  amendment  in  respect  to  the  recall  of  judi- 
cial decisions.  It  provides  that  the  supreme  court  only 
shall  pass  on  the  constitutionality  of  laws  and  that  such 
decisions  shall  be  subject  to  a  referendum  petition  and 
vote.  In  respect  to  the  recall  of  judges  it  is  said  that  this 
movement  is  not  directed  against  judges  as  such,  but  rather 
is  an  assertion  of  the  general  principle  that  if  the  voters 
have  the  right  to  elect,  they  also  have  the  right  to  dismiss. 


178          AMERICAN  STATE   CONSTITUTIONS 

The  first  judge  recalled  under  this  system  was  the  judge  of 
the  police  court  of  San  Francisco  in  1913. 

THE  JURY 

It  is  plainly  evident  that  the  time-honored  jury  system 
is  subject  to  amendment  in  these  modern  days.  Several 
states1  by  constitution  or  by  statute  either  abolish  or 
authorize  the  legislature  or  the  court  to  abolish  at  its 
discretion  the  grand  jury.  If  retained,  the  number  of 
its  membership  and  of  those  who  must  concur  is  often 
stated. 

Many  constitutions  arrange  that  a  jury  may  be  waived 
altogether  in  petty  civil  suits,  or  in  more  important  cases  by 
agreement,  or  in  misdemeanors;  or  that  the  jury  may  be 
less  than  twelve,  or  a  verdict  may  be  rendered  by  a  vote 
that  is  not  unanimous.  These  modifications  are  too  numer- 
ous to  specify  in  detail  but  many  such  provisions  may  be 
found  under  bill  of  rights  and  judicial  department.2  These 
modifications  in  the  jury  system,  though  not  in  themselves 
so  important,  yet  show  a  tendency  worth  noting.  A 
state  desirous  of  modifying  its  jury  system  should  put  a 
provision  to  that  effect  in  its  constitution,  and  if  its  consti- 
tution contains  some  such  provision  as  the  following : 
"The  right  of  trial  by  jury  shall  be  preserved  inviolate," 
it  should  a.dd,  as  Kentucky  does,  "  subject  to  such  modifi- 
cations as  may  be  authorized  by  this  constitution."  It  was 
once  rather  common  in  this  country  to  allow  a  jury  to  be 
judge  of  the  law  as  well  as  of  the  facts,  the  reaction  against 
that  older  practice  is  shown  by  a  provision  in  several 

1  See  for  example  Colorado,  Illinois,  Minnesota,  Missouri,  North  Dakota, 
South  Dakota,  Wisconsin,  Wyoming,  Utah,  Washington. 

2  Most  of  the  constitutions  contain  such  provisions  but,  as  illustrations, 
see  Idaho,  Louisiana,  Montana,  North  Carolina,  South  Dakota,  Virginia, 
Arizona. 


THE  JUDICIAL  DEPARTMENT  179 

constitutions  that  "  judges  shall  not  charge  juries  with 
respect  to  matters  of  fact  but  may  state  the  questions  of 
facts  in  issue  and  declare  the  law."  1  Maryland  makes  the 
opposite  statement,  Article  XV,  5. 

MISCELLANEOUS 

It  is  now  common  in  most  of  our  states  to  grant  legal 
and  equitable  relief  in  one  suit,  a  reform  largely  brought 
about  through  the  influence  of  Justice  Field  (David  Dudley 
Field) .  A  provision  authorizing  such  procedure  is  found  in 
several  constitutions.2  "  There  shall  be  but  one  form  of 
civil  action,  and  law  and  equity  may  be  administered  in 
the  same  action. ' '  Following  up  this  tendency  many  consti- 
tutions provide  for  tribunals  of  conciliation3  whose  decisions 
are  not  to  be  obligatory  unless  by  mutual  consent. 

Certain  minor  judicial  features  of  our  state  constitutions 
may  briefly  be  mentioned  as  indicative  of  the  present  trend. 
It  is  quite  usual,  especially  in  new  constitutions,  to  define 
the  boundaries  of  judicial  districts.  This  is  purely  a  matter 
of  detail  that  might  better  be  placed  in  the  schedule  and  left 
to  be  amended  by  ordinary  statute.  Fourteen  states  expressly 
authorize  the  supreme  court  to  superintend  and  control 
inferior  courts ; 4  six  states  provide  that  judges  may  suggest 
improvements  in  the  law  for  legislative  action.5  Four  of 

1  Delaware ;    also  Arkansas,  California,  Nevada,  South  Carolina,  Ten- 
nessee, Washington,  Arizona. 

2  Among  these  may  be  mentioned  Idaho,  Montana,  Nevada,  Utah,  and 
Wisconsin ;  see  also  Ohio,  Article  XIV. 

3  Alabama,  Colorado,  Kentucky,  Louisiana,  Michigan,  North  Dakota, 
Texas,  Wisconsin  and  Wyoming,  for  example. 

4  Arkansas,  Colorado,  Iowa,  Louisiana,  Maryland,  Michigan,  Missouri, 
Montana,  New  Mexico,  North  Dakota,  Oklahoma,  South  Dakota,  Wisconsin, 
Wyoming.    Oregon  gives  this  power  to  its  circuit  courts.   See  also  California, 
Texas  and  Washington  for  modified  powers. 

5  Colorado,  Florida,  Idaho,  Illinois,  Utah,  Washington. 


i8o          AMERICAN  STATE   CONSTITUTIONS 

the  older  states 1  still  allow  the  governor  or  assembly  to  ask 
the  supreme  court  for  opinions  on  important  questions  of 
law,  or  on  "  solemn  occasions."  South  Dakota  and  Florida 
allow  the  governor  this  privilege  but  all  the  other  states 
wisely  prefer  to  keep  the  supreme  court  out  of  politics  and 
omit  the  provision. 

Idaho  and  North  Carolina  authorize  the  supreme  court  to 
hear  claims  against  the  state  but  its  decisions  are  to  be 
merely  recommendatory.  The  senate  as  a  court  of  impeach- 
ment still  holds  its  place  in  the  judicial  system,  though  it 
is  an  exceedingly  cumbersome  and  somewhat  antiquated 
method  of  trial.  In  New  York  the  judges  of  the  court  of 
appeals  are  added  to  the  senate  in  such  trials.  Oregon  only, 
of  all  the  states  (VII,  19),  has  no  provision  for  impeach- 
ment. 

An  attempt  to  define  libel  is  a  marked  feature  in  many 
constitutions.  This  may  be  found  either  under  Bill  of  Rights 
or  Judicial  Department.  Among  the  most  elaborate  of 
these  are  the  provisions  found  in  the  constitutions  of 
Michigan,  California,  Pennsylvania,  Alabama,  Arkansas, 
and  Oklahoma.  Many  states  make  a  judicial  officer  in- 
eligible to  any  other  than  a  judicial  office.  Some  states 
refuse  him  permission  to  be  absent  from  the  state  for  a 
longer  period  than  sixty  or  ninety  days.2  Five  states3 
require  the  court  to  furnish  for  record  a  syllabus  of  the 
points  adjudicated  in  each  case.  A  few  constitutions  use 
pressure  so  as  to  expedite  judges  in  their  work.  Arizona, 
for  example,  requires  that  every  case  submitted  to  the 
judge  of  a  superior  court  for  his  decision  must  be  decided 
within  sixty  days.  Some  of  these  provide  that  judges  shall 

1  Massachusetts,  Maine,  New  Hampshire,  Rhode  Island.     In  regard  to 
"Advisory  Opinions,"  see,  Thayer's  (J.  B.)  Legal  Essays,  pp.  42-59. 

2  California,  Missouri,  Utah,  Washington,  Arizona. 

3  North  Dakota,  Oregon,  South  Carolina,  Utah,  West  Virginia. 


THE  JUDICIAL  DEPARTMENT  181 

not  collect  their  salaries  unless  they  take  oath  that  all  con- 
troversies finally  submitted  have  been  decided.1  Three 
states  endeavor  to  define  contempt  of  court.2  Seven  states3 
provide  that  the  publication  of  decisions  shall  be  free,  and 
two  provide  that  the  copyright  shall  belong  to  the  state 
(Nebraska,  South  Dakota). 

Alabama  authorizes  judges  to  exclude  the  public  from  the 
court  room  in  cases  of  rape,  and  Georgia  must  greatly  add 
to  the  business  of  its  supreme  court  by  declaring  that  "The 
costs  in  the  supreme  court  shall  not  exceed  ten  dollars, 
unless  otherwise  provided  by  law."  Florida  requires  that 
the  legislature  "appropriate  at  least  $500  each  year  for  the 
purchase  of  such  books  for  the  supreme  court  library  as 
the  court  may  direct."  Arizona  has  a  requirement  that 
"No  cause  shall  be  reversed  for  technical  error  in  pleading 
or  proceedings  when  upon  the  whole  case  it  shall  appear 
that  substantial  justice  has  been  done."  4 

1  For  such  and  similar  provisions  see  California,  Georgia,  Idaho,  Mary- 
land, Montana,  Nevada,  South  Carolina,  Utah,  Washington. 

2  South  Carolina,  Arkansas,  Louisiana. 

3  California,  Missouri,  New  York,  Utah,  Washington,  Florida,  Arizona. 

4  See,  for  a  somewhat  similar  provision,  California's  constitution,  Article 
VI,  Section  4^.     The  word  "criminal"  was  omitted  from  this  section  by 
amendment,  1914. 


CHAPTER  XV 

ORGANIZATION    OF    THE    LEGISLATIVE    DEPARTMENT 
AND   ITS   PROCEDURE 

THE  most  important  department  in  our  system  of  govern- 
ment is  that  of  lawmaking.  This  power  at  the  beginning 
of  our  national  existence  nearly  one  hundred  and  forty  years 
ago  was  exerted  only  through  legislatures ;  at  the  present 
time  the  power  of  making  fundamental  law  has  largely 
passed  to  the  constitutional  convention  and  to  the  electorate. 
This  latter  body,  through  the  referendum,  and  in  some 
states  through  the  initiative,  also  shares  to  some  extent  the 
power  of  making  statutes.  The  relative  importance  of 
legislatures  is  therefore  decreasing,  not  in  a  few  but  in  all 
the  states,  and  that,  too,  in  spite  of  the  fact  that  legislatures 
are  much  more  democratic  than  formerly.  Under  such 
conditions  conventions  really  have  before  them  a  problem 
well  worth  considering,  viz.,  shall  an  attempt  be  made  to 
enhance  the  dignity  and  importance  of  the  legislature  so 
as  to  make  it  worthy  of  the  place  it  theoretically  fills  in 
our  political  system,1  or,  on  the  other  hand,  shall  the 
process  of  minimizing  its  importance  be  continued  until  it 
becomes  an  impotent  body  of  small  consequence,  dragging 
along  a  paltry  existence,  to  be  finally  abolished  as  useless 
by  some  future  convention?  A  powerful  executive  with 
ordinance  privileges,  a  convention  meeting  periodically, 

1  See  Vermont  constitution,  Chapter  2.  Section  36.  "The  House  .  .  . 
shall  consist  of  persons  most  noted  for  wisdom  and  virtue  ". 

182 


THE  LEGISLATIVE   DEPARTMENT  183 

and  the  use  of  the  initiative  and  referendum  as  in  Oregon, 
certainly  seem  to  leave  no  pressing  necessity  for  a  legis- 
lature. Under  present  tendencies  it  must  either  pass  out 
of  use  or  be  reorganized  on  a  scientific  basis. 

This  and  the  two  following  articles  will  contain  certain 
facts  obtained  from  a  comparison  of  our  constitutions  that 
may  throw  some  light  on  this  all-important  problem. 

LEGISLATIVE  ORGANIZATION 

Name.  The  lawmaking  bodies  of  our  states  are  gener- 
ally called  legislatures,  but  that  in  most  cases  is  not  the 
legal  name.  In  twenty-three  states  it  is  known  as  the 
general  assembly,  in  twenty  as  the  legislature,  in  three  as 
the  legislative  assembly,1  and  in  two  as  the  general  court.2 
All  the  states  name  the  small  or  upper  house  the  senate, 
and  forty  call  the  larger  body  the  house  of  representatives. 
Four  call  it  the  assembly,3  three,  the  house  of  delegates,4 
and  one,  the  general  assembly  (New  Jersey). 

Membership.  It  is  hard  to  realize  that  in  our  state 
legislatures  alone  we  have  7,347  lawmakers,  (1,746  in  senate 
and  5,601  in  house,  or  an  average  for  each  state  of  thirty- 
seven  senators  and  one  hundred  and  seventeen  represen- 
tatives) .  Omitting  the  New  England  states,  the  average  is 
thirty-seven  in  the  senate  and  one  hundred  in  the  house. 
If  "in  multitude  of  counsellors  there  is  safety"  surely  we 
are  safe  when  our  legislatures  are  in  session !  If  undue 
size  is  a  political  sin,  the  worst  sinners  are  the  New  England 
states,  which  have  in  their  six  lower  houses  1,401  members, 
besides  195  in  the  senates.  This  is  due  to  their  unfortunate 

1  North  Dakota,  Montana,  Oregon. 

2  Massachusetts,  New  Hampshire. 

3  California,  Nevada,  New  York,  Wisconsin. 

4  Maryland,  Virginia,  West  Virginia. 


1 84          AMERICAN   STATE   CONSTITUTIONS 

emphasis  on  the  importance  of  the  town,  once  the  pride 
but  now  the  bane  of  New  England  politics.  The  five 
states 1  largest  in  population  average  forty-three  in  the 
senate  and  one  hundred  and  fifty-two  in  the  house;  New 
York,  the  largest  state,  has  fifty-one  and  one  hundred  and 
fifty  respectively.  Omitting  the  six  New  England  states 
the  twenty-four  next  largest  states  having  a  population  over 
one  million  average  forty  in  the  senate  and  one  hundred 
and  nine  in  the  house;  the  remaining  thirteen  states 
average  twenty-nine  in  the  senate  and  sixty- three  in  the 
house.  Of  all  the  legislatures  only  two  senates  have  a 
membership  of  over  fifty-one  (Alabama  fifty-four,  Minne- 
sota sixty-seven) ;  two  are  under  twenty  (Utah  eighteen, 
Delaware  seventeen).  Four  houses  have  a  membership  of 
less  than  fifty  (Delaware  thirty-five,  Arizona  thirty-five, 
Utah  forty-five,  New  Mexico  forty-nine) ;  and  five  houses 
have  a  membership  of  over  two  hundred  (Pennsylvania  two 
hundred  and  seven,  Massachusetts  two  hundred  and  forty, 
Vermont  two  hundred  and  forty-six,  Connecticut  two  hun- 
dred and  fifty-eight,  and  New  Hampshire,  four  hundred 
and  six,  almost  as  large  as  the  national  house) .  An  average 
taken  of  the  ten  new  constitutions  made  since  1888  shows 
the  houses  to  be  respectively  thirty-three  and  seventy-four. 

Delaware  has  the  smallest  legislature,  fifty-two  members ; 
New  Hampshire  has  the  largest,  four  hundred  twenty-six. 
The  population  of  the  latter  state  is  a  little  more  than  twice 
that  of  the  former;  or,  from  another  standpoint,  New 
Hampshire  has  one  legislator  for  every  1000  of  the  popula- 
tion ;  Delaware,  one  for  every  4000 ;  and  the  state  of  New 
York,  one  for  every  forty-five  thousand. 

The  figures  as  a  whole  show  that  the  American  tend- 
ency is  to  have  a  senate  from  one-half  to  one- third  that  of 

1  New  York,  Pennsylvania,  Illinois,  Ohio,  Texas. 


THE  LEGISLATIVE  DEPARTMENT  185 

the  house  in  membership,1  that  the  legislatures  of  our 
largest  states  should  not  exceed  a  joint  membership  of  about 
two  hundred ;  our  average  states  not  over  one  hundred 
sand  fifty,  and  the  legislatures  of  our  small  states  with  a 
:  population  of  one  million  or  less  should  have  a  membership 
ranging  from  ninety  to  one  hundred  ten.  Experience 
shows  that  it  is  on  the  whole  best  to  fix  the  numbers  def- 
initely in  the  constitution.  If  the  legislature  is  given  the 
power,  the  number  of  representatives  becomes  too  large. 
It  is  far  easier  in  practice  to  increase  than  to  decrease  the 
number. 

Representation.2  Three  of  the  New  England  states  have 
both  houses  organized  on  a  basis  of  population  similar  in 
practice  to  that  of  the  other  states.  The  three  other  states 
of  this  section  each  have  one  of  their  houses  fairly  demo- 
cratic, but  the  other  house  is  based  on  a  town  system,  re- 
gardless of  population.  These  six  states,  however,  are 
omitted  from  the  comparisons  of  the  two  following  para- 
graphs, since  they  should  be  studied  by  themselves. 

The  prevailing  basis  of  representation  in  the  senate  of 
the  forty-two  remaining  states  is  population.  Thirty-three 
order  a  reapportionment  after  every  census,  based  on 
population,  and  three  based  on  voting  population.3  The 
other  six  states 4  also  base  the  apportionment  on  popula- 
tion, but  make  some  modification  or  exception  that  renders 
the  senate  not  quite  so  democratic  in  basis  as  those  of  the 
other  thirty-six  states. 

In  all  of  the  forty-two  states  population  is  the  basis  of 
representation  in  the  house.  In  twenty  of  these  there  are 

1  This  ratio  is  fixed  in  some  states,  for  example  Iowa,  Nevada,  Utah, 
Washington,  Wyoming. 

2  See  also  chap,  xix  for  further  details. 
8  Arkansas,  Indiana,  Tennessee. 

4  Delaware,  Georgia,  Maryland,  Montana,  New  Jersey,  South  Carolina. 


1 86          AMERICAN  STATE   CONSTITUTIONS 

no  restrictions  whatever,  but  in  the  remaining  states  there 
are  restrictions  aiming  to  secure  representation  for  each 
county  in  the  larger  house,  or  to  reduce  somewhat  the  proper 
proportion  to  be  assigned  to  cities.  These  are  not  ex- 
cessive in  the  case  of  fifteen  of  the  states,  but  seven  are 
unduly  restricted.1  Ten  of  the  older  states  provide  in  their 
constitutions  a  complex  ratio  for  determining  representa- 
tion, but  one  only  of  the  newer  states,  Oklahoma,  includes 
a  ratio  for  determining  house  representation.  The  single- 
member  district  is  the  prevailing  form  in  the  states,  though 
there  are  some  exceptions,  since  the  county  may  be  used  as  a 
general  district  for  the  house  and  its  representatives  be 
elected  at  large.2 

Terms.  Thirty-one  states  fix  on  a  four-year  term  for 
senators  and  all  but  seven 3  of  these  provide  for  arrangement 
into  two  classes,  one-half  retiring  every  two  years.  New 
Jersey  elects  for  three  years  on  a  three-class  system. 
Fifteen  states 4  elect  their  senators  for  two  years  only,  and 
Massachusetts  for  one  year.  For  members  of  the  house 
the  term  is  two  years  in  forty-three  states,  four  years  in 
Alabama  and  Louisiana,  and  one  year  in  Massachusetts, 
New  York  and  New  Jersey. 

Sessions.  In  the  "good  old  times"  constitutions  pro- 
vided for  annual  sessions  and  used  to  declare  that  "The 
legislature  ought  frequently  to  assemble."  5  The  states 
seem  not  so  sure  of  that  now  for  there  are  two  states 
that  elect  their  legislatures  quadrennially,  Louisiana  and 

1  Delaware,  Georgia,  Kansas,  Maryland,  Missouri,  Ohio,  Utah. 

2  For  example,  in  Illinois,  Mississippi,  Missouri,  North  Dakota,  Texas. 

3  Alabama,    Delaware,    Kansas,   Louisiana,   Mississippi,   New   Mexico, 
Virginia. 

4  Connecticut,  Georgia,  Idaho,  Maine,  Michigan,  Nebraska,  New  Hamp- 
shire, New  York,  North  Carolina,  Ohio,  South  Dakota,  Tennessee,  Vermont, 
Arizona,  Rhode  Island. 

5  See  constitutions  of  Maryland,  Massachusetts,  South  Carolina. 


THE  LEGISLATIVE  DEPARTMENT  187 

Alabama,  the  last  of  which  has  but  one  regular  session  dur- 
ing that  term.  All  other  states  hold  biennial  sessions  except 
Georgia,  Massachusetts,  New  Jersey,  New  York,  Rhode 
Island,  South  Carolina  which  provide  for  annual  meetings. 
Twenty-six  states  place  no  constitutional  limitation  on  the 
length  of  the  session,  but  eleven  x  of  them  provide  that  pay 
stop  entirely  or  be  reduced  in  amount,  at  the  end  of  a  specified 
time.  The  practical  effect  of  this  proviso  is  to  reduce  the 
session  to  the  period  of  full  pay.  If  all  states  except  the 
remaining  fifteen  be  considered  as  having  a  constitutional 
time  limit  we  find  twenty-one  setting  a  sixty-day  limit, 
six,  a  limit  of  from  forty  to  fifty  days ;  and  six,  at  intervals 
ranging  from  seventy  to  ninety  days.  California  formerly 
had  a  sixty  day  limit  but  now  provides  for  a  thirty  day 
session  for  the  initiation  of  bills,  a  recess  for  at  least  thirty 
days,  and  then  the  continuation  of  the  session  without 
limit.  Four 2  states  set  a  limit  but  authorize  the  legislature 
to  extend  the  same  if  necessary.  Special  sessions  are 
regularly  authorized  and  eighteen  states  set  limits  to 
the  duration  of  these,  the  favored  periods  being  twenty, 
thirty  and  forty  days. 

Salaries.  Over  one-half  of  the  constitutions  specify  the 
per  diem  of  their  legislators  and  regularly  get  it  too  low. 
Once  fixed  in  the  constitution  it  is  hard  to  raise  the  amount 
by  amendment  since  voters  seem  to  delight  in  voting  down 
all  forms  of  increase  in  pay.  The  per  diem  amount  paid  is 
often  barely  sufficient  for  expenses  at  a  cheap  hotel  and 
must  be  eked  out  from  other  sources  of  income.  Many 
constitutions  fortunately  allow  legislatures  discretion  in 
regard  to  the  amount  of  pay  and  in  such  states  a  more 

1  Idaho,  Kansas,  Missouri,  North  Carolina,  Oregon,  South  Carolina, 
Tennessee,  Texas,  Oklahoma,  Arizona,  Rhode  Island. 

2  Arkansas,  Georgia,  Virginia,  West  Virginia. 


1 88          AMERICAN  STATE   CONSTITUTIONS 

* 
generous  provision  is  made.     Yet  there  is  a  strong  trend 

towards  an  increase  in  the  amount  paid,  but  usually  taking 
the  form  of  a  stated  amount  for  the  term  or  for  the  year. 
There  are  twenty-nine  states  paying  a  per  diem  which  aver- 
ages about  five  dollars,  fifty  cents.  The  remaining  states 
pay  an  amount  per  annum,  or  for  the  term  or  the  session. 
A  per  diem  is  usually  named  for  special  sessions.  The 
best  paid  legislators  are  those  of  Illinois,  who  receive  $  2000 
per  year.  The  lowest  are  Oregon  (three  dollars  per  day 
for  forty  days),  Missouri  and  Kansas,  at  three  dollars 
per  day.1  Mileage  is  regularly  specified  in  addition,  and 
in  a  few  constitutions  an  attempt  is  made  to  regulate  the 
amount  of  incidental  expenses.2 

THE  PROCEDURE  IN  BILLS 

Under  the  legislative  department  will  regularly  be  found 
a  number  of  provisions  in  regulation  of  the  organization  and 
general  powers  of  the  legislature.  Among  these  is  one 
authorizing  each  house  to  determine  the  rules  of  its  own 
procedure.  In  one  respect  at  least,  this  power  has  been 
taken  from  the  houses.  Proper  deliberation  and  an  oppor- 
tunity for  free  discussion  are  so  important  in  legislation 
that  the  procedure  in  respect  to  the  passing  of  bills  is  now 
in  many  of  our  states  regulated  by  constitution,  from  the  in- 
troduction of  the  bill  to  its  promulgation  after  passage. 
This  is  one  of  the  most  important  checks  on  legislative 
power  yet  devised.  The  contrast  between  the  old  and  the 
new  in  this  respect  can  easily  be  seen  by  comparing  the 

1  All  three  of  these  states  submitted  in  1908  referenda  arranging  for  an 
increase  of  pay,  but  the  decisions  at  the  polls  were  negative.     Amendments 
of  this  sort  were  rejected,  1914,  in  Arkansas,  Missouri,  North  Carolina, 
Oregon,  Texas,  Wisconsin,  Wyoming. 

2  For  example  Missouri  and  Delaware.     For  California's  new  provision 
see  its  constitution,  Article  IV,  Section  23a. 


THE  LEGISLATIVE  DEPARTMENT  189 

ancient  constitutions  of  New  England  with  almost  any  of 
those  made  since  1888,  especially  the  constitutions  of  Ala- 
bama, Kentucky,  Louisiana,  Mississippi.  In  three  con- 
stitutions a  separate  heading  has  been  set  aside  for  such 
and  kindred  regulations  of  procedure  or  proceedings.1  A 
complete  list  of  such  restrictions  would  practically  indicate 
all  the  evils  that  have  developed  in  legislative  experience, 
for,  of  course,  each  restriction  is  aimed  at  some  observed 
defect  or  evil  in  the  legislative  system.  In  practice  the 
chief  difficulty  lies  in  the  enforcement  of  these  provisions. 
Especially  are  those  requiring  the  reading  of  bills  in  full 
often  disregarded  by  " unanimous  consent"  or  the  "sus- 
pension of  the  rules."  The  courts  rarely  interfere,  since  as 
a  rule  they  do  not  care  to  call  in  question  the  legality  of  the 
actual  procedure  used  by  a  coordinate  department  of  govern- 
ment in  the  passing  of  legislation ;  so  that  the  two  houses 
virtually  have  the  matter  in  their  own  hands. 

It  is  generally  provided  that  no  law  shall  be  passed  except 
by  bill,  and  that  no  new  bill  shall  be  introduced  within  the 
last  few  days  of  the  session  —  three  to  twenty  days  —  ex- 
cept by  consent  of  a  large  fraction  of  the  house.  Some 
confine  this  restriction  to  appropriation  bills.  California 
requires  that  all  bills  shall  be  introduced  within  the  first 
thirty  days  of  the  broken  session.  Thereafter  bills  can  be 
introduced  only  by  consent  of  three-fourths  of  the  member- 
ship. The  effect  of  this  provision  is  said  to  be  the  intro- 
duction of  a  number  of  "fake"  bills  in  the  early  session,  to 
be  " amended"  in  the  later  session.  Nebraska  insists  that 
no  bills  shall  be  introduced  after  the  first  twenty  days  unless 
the  governor  so  requests  in  a  special  message.  General 
appropriation  bills  however  may  be  introduced  during 
the  first  forty  days.  No  bill  is  to  embrace  more  than  one 
1  Mississippi,  Missouri,  Texas. 


I9o          AMERICAN  STATE   CONSTITUTIONS 

subject,  which  must  be  plainly  expressed  in  its  title,  any 
part  not  so  expressed  being  null  and  void.  This  require- 
ment naturally  multiplies  the  number  of  statutes  to  be 
considered.  General  appropriation  bills,  and  bills  for  the 
revision  and  codification  of  laws  are  excepted  from  this 
provision.  The  time  honored  provision  that  revenue  bills 
shall  originate  in  the  house  only,  and  be  subject  to  amend- 
ment in  the  senate,  is  required  by  twenty- two  states.  The 
others  either  expressly  authorize  either  house  to  introduce 
any  bill  or  infer  it  by  silence.  It  is  regularly  provided  that 
every  appropriation  outside  of  the  general  appropriation 
shall  be  by  special  bill.  Some  (Mississippi  for  example) 
add  that  no  appropriation  bill  shall  be  passed  which  does 
not  fix  definitely  the  maximum  sum  thereby  authorized  to 
be  drawn  from  the  treasury.  In  others,  New  York  for 
example,  bills  appropriating  money  for  local  or  private 
purposes  must  receive  a  two-thirds  vote  of  all  members 
elected  to  both  houses,  and,  again,  not  less  than  three- 
fifths  of  all  members  elected  shall  form  a  quorum  for  the 
consideration  of  a  revenue  or  appropriation  bill.  No  act 
can  be  revised  or  amended  by  mere  reference  to  its  title, 
but  what  is  amended  must  be  set  forth  in  full;  nor  is 
any  amendment  to  a  bill  allowed  which  would  change  the 
scope  and  object  of  the  bill. 

In  view  of  the  great  importance  of  legislative  committees 
it  is  strange  that  so  few  constitutions  attempt  to  regulate 
them.  The  task  is  apparently  too  great  for  conventions. 
The  only  provisions  are  the  following :  Some  nine  states 
require  that  all  bills  must  be  referred  to  a  committee. 
Oklahoma  provides  that  the  senate  shall  elect  all  of  its 
standing  committees  by  a  majority  vote.  Kentucky 
states  that  whenever  a  committee  fails  or  refuses  to  report 
within  a  reasonable  time,  any  member  may  call  up  the 


THE  LEGISLATIVE  DEPARTMENT  191 

bill.  Michigan  forbids  any  rule  that  would  prevent  a 
majority  of  the  members  elected  from  discharging  a  com- 
mittee from  the  further  consideration  of  any  measure. 
Three  states *  make  provision  for  a  joint  committee  on  local 
and  special  legislation,  which  under  its  instructions  ought 
to  be  most  useful  in  handling  that  distressing  part  of 
legislation.  Five  states  provide  that  voting  on  reports  of 
committees  of  conference  shall  be  recorded  by  a  yea  and 
nay  vote. 

Many  of  the  constitutions  authorize  a  demand  for  a  yea 
or  nay  vote  on  any  question ;  the  number  who  may  make 
the  demand  varies  from  one  member  to  one-fifth  of  the 
membership.  It  is  generally  provided  that  bills  must  be 
read  three  times,  but  differences  arise  as  to  whether  these 
shall  be  read  in  full  and  on  three  separate  days.  The  last 
reading  is  regularly  in  full  and  vote  on  its  passage  is  re- 
corded by  yeas  and  nays.  New  York  forbids  amendment 
at  the  last  reading.  New  Mexico  requires  that  "No  inter- 
lineation or  erasure  in  a  signed  bill  shall  be  effective  unless 
certified  thereon  in  express  terms  by  the  presiding  officer 
of  each  house  quoting  the  words  interlined  or  erased,  nor 
unless  the  fact  of  the  making  of  such  interlineation  or  erasure 
be  publicly  announced  in  each  house  and  entered  on  the 
journal."  (Article  IV.  Section  20.  See  also,  Section  21.) 
Mississippi  requires  that  all  votes  on  final  passage  shall  be 
subject  to  one  day's  reconsideration.  It  is  now  a  common 
requirement  that  bills  be  printed  with  all  amendments  and 
placed  in  the  hands  of  members  before  the  final  vote.2 
Louisiana  authorizes  also  the  printing  of  minutes  each  day 
for  the  use  of  members. 

A  quorum  is  regularly  a  majority  of  all  members,  and  bills 

1  Georgia,  Mississippi,  Virginia. 

2  As  illustrations,  Missouri,  Pennsylvania,  New  York. 


I92          AMERICAN  STATE  CONSTITUTIONS 

pass  by  a  majority  of  those  present,  but  some  require1 
that  every  bill  must  receive  a  majority  vote  of  all  members 
elected,  and  New  Hampshire  requires  that  when  less  than 
two-thirds  of  all  members  are  present,  a  two-thirds  vote 
is  necessary.  Kentucky  makes  the  fraction  of  those  present 
two-fifths. 

All  bills  of  course  when  finally  passed  must  be  signed  by 
the  presiding  officers,  but  this  has  become  a  quite  formal 
occasion;  other  business  is  suspended,  the  bill  is  read  at 
length  and  compared,  then  the  chairman  signs  in  open  ses- 
sion and  sends  on  the  bill  to  the  other  house  where  the  same 
procedure  takes  place.2  Twelve  constitutions  allow  any 
member  to  make  formal  protest  against  a  bill  and  to  have 
the  protest  entered  on  the  records.3  Minnesota  allows  no 
bill  to  be  passed  on  the  last  day  of  the  session.  Kentucky, 
Maine,  Mississippi,  New  York  forbid  riders  on  appropria- 
tion bills.  About  one-half  of  the  constitutions  define  when 
the  laws  shall  go  into  effect.  The  period  set  varies  from 
forty  to  ninety  days,  the  last  being  the  favorite.  A  few 
prefer  to  fix  a  definite  date  for  all  bills,  as  the  first  day  of 
June  or  July,  this  is  usually  equivalent  to  a  sixty  or  ninety 
day  limit.4  As  a  rule  provision  is  made  that  a  bill  may  go 
into  effect  immediately  in  case  of  emergency. 

The  " emergency"  permission  is,  however,  a  source  of 
much  trouble,  since  it  is  often  used  to  avoid  the  demand  for 
a  referendum.  The  legislature,  for  instance,  may  attach 
the  emergency  clause  to  any  bill  it  wishes  to  put  into  effect 
at  once,  its  wish  being  the  only  emergency.  In  Arizona, 
for  example,  the  house  in  1912,  to  avoid  the  constitutional 

1  Louisiana  and  Delaware  for  example. 

2  See  Alabama,  Kentucky,  and  Missouri,  as  illustrations.      But  as  a  rule 
the  reading  of  the  bill  in  full  may  be  dispensed  with  by  vote. 

3  See  Missouri  for  example. 

4  See  Illinois,  Iowa,  Maryland,  North  Dakota. 


THE  LEGISLATIVE  DEPARTMENT  193 

provision,  "  Every  bill  shall  be  read  by  sections  on  three 
different  days,  unless  in  case  of  emergency,"  placed  on  its 
journal  a  general  declaration  of  emergency  and  henceforth 
omitted  all  but  the  last  reading  of  its  bills.  So  far,  the  best 
safeguard  against  the  wrong  use  of  the  emergency  clause 
may  be  found  in  the  constitution  of  California,1  which  reads 
as  follows :  — 

"Whenever  it  is  deemed  necessary  for  the  immediate  pres- 
ervation of  the  public  peace,  health,  or  safety  that  a  law 
shall  go  into  immediate  effect,  a  statement  of  the  facts  con- 
stituting such  necessity  shall  be  set  forth  in  one  section  of 
the  act,  which  section  shall  be  passed  only  upon  a  yea  and 
nay  vote,  upon  a  separate  roll  call  thereon;  provided, 
however,  that  no  measure  creating  or  abolishing  any  office 
or  changing  the  salary,  term  or  duties  of  any  officer,  or 
granting  any  franchise  or  special  privilege,  or  creating  any 
vested  right  or  interest,  shall  be  construed  to  be  an  urgency 
measure."  Oklahoma  also  seeks  to  guard  the  emergency 
clause,2  and  further  provides  that  the  governor's  veto 
of  an  emergency  bill  must  be  overridden  by  a  three-fourths 
vote  instead  of  the  usual  two-thirds. 

It  is  easy  to  see  that  the  strict  enforcement  of  the  severest 
of  these  regulations  would  prevent  much  hasty  legislation, 
but  it  can  hardly  be  said  that  constitutional  conventions  or 
legislative  committees  on  rules  of  procedure  are  yet  satisfied 
with  existing  systems  of  procedure.  Several  states  already 
have  made  studies  of  these  and  Nebraska  has  now,  1914, 
a  legislative  committee  at  work  on  the  subject.  Each  new 
convention  will  doubtless  devote  much  thought  to  this  im- 
portant problem. 

1  Amendment  1911,  Article  IV.  Section  one. 

2  Article  V.  Section  fifty-eight. 


CHAPTER  XVI 
POPULAR  REPRESENTATION  IN  STATE  LEGISLATURES  1 

THE  famous  Northwest  Ordinance  of  1787,  in  article 
second  of  its  compact,  declares  that,  "The  inhabitants  of 
the  said  territory  shall  always  be  entitled  to  the  benefits  of 
...  a  proportionate  representation  of  the  people  in  the 
legislature."  This  principle  of  popular  representation  may 
now  be  looked  on  as  a  settled  American  policy  and  de- 
partures from  it  as  exceptions  to  the  general  rule.  In 
our  state  constitutions  this  principle  is  embodied  in  the 
command  that  representation  in  both  legislative  houses 
shall  be  based  on  population,  and  a  readjustment  made 
decennially,  after  the  taking  of  either  national  or  state 
census.  Legislatures,  to  be  sure,  in  carrying  out  this 
injunction,  may  be  to  some  extent  unfair  in  their  apportion- 
ments, but  that  is  a  matter  of  discretion  and  expediency, 
the  remedy  for  which  should,  in  case  of  gross  inequalities, 
lie  in  the  courts.2 

While,  however,  the  principle  of  equal  representation  is 
embodied  in  our  state  constitutional  system,  there  are 
exceptions,  and  some  of  these  are  serious  departures  from 
the  principle.  In  a  few  states  at  least  a  system  of  repre- 
sentative democracy  does  not  exist,  but  rather  a  form  of 

1  Note  in  Bibliography,  Reed's  Territorial  Basis,  especially  chaps,  vii-viii. 

2  Oklahoma,  for  example,  provides  that  "An  apportionment  by  the  legis- 
lature shall  be  subject  to  review  by  the  Supreme  Court  at  the  suit  of  any 
citizen,  under  such  rules  and  regulations  as  the  legislature  may  prescribe." 
Article  V.  10.  j. 

194 


POPULAR  REPRESENTATION  195 

oligarchy.  These  modifications  are  generally  survivals 
from  an  earlier  system,  once  fair  enough,  but  now  anti- 
quated and  retained  for  partisan  purposes;  or  retained 
sometimes  as  a  sort  of  guaranty  for  the  minority  against  a 
powerful  majority.  In  form  they  are  constitutional 
provisions  aiming  to  secure  representation  to  districts, 
county  or  town,  irrespective  of  population;  or,  on  the 
other  hand,  to  place  limitations  on  city  representation  as 
against  the  representation  of  the  rural  population.  These 
provisions  are  fourfold :  there  are  (i)  provisions  that  each 
town  or  county  have  one  or  more  members :  (2)  that  no 
city  or  county  have  more  than  a  fixed  number  or  fraction ; 

(3)  a  complex  ratio  is  specified  which  in  effect  may  dis- 
criminate against  some  in  favor  of  other  localities ; 1  and 

(4)  the  districts  are  themselves  fixed  by  constitution  and 
limitations  placed  on  legislative  power  to  alter  these. 

This  chapter  aims  to  present  in  detail  the  systems  of 
representation  in  our  several  state  legislatures,  from  the 
standpoint  of  equal  popular  representation.  As  a  common 
basis  for  this  study  the  federal  census  of  1910  will  be  used,2 
the  county  taken  as  the  unit  of  representation,  and  an 
apportionment  be  considered  as  "equal,"  when  the  popula- 
tion of  a  district  ranges  anywhere  from  a  half  ratio  to  a 
ratio  and  a  half.  The  ratio,  of  course,  will  be  obtained  by 
dividing  the  population  of  the  state  by  the  respective 
memberships  in  senate  or  house.  In  a  few  constitutions  a 
different  fraction  of  a  ratio  may  be  fixed  (two-thirds  for 
instance) ;  or  the  population  taken  into  account  may  be 
the  voting  population,  or  the  census  population  less  aliens; 

1  For  ratio  provisions  see  constitutions  of  Iowa,  Maine,  Maryland,  Mis- 
souri, North  Carolina,  New  Hampshire,  New  York,  Ohio,  Pennsylvania, 
West  Virginia,  and  Oklahoma. 

2  But  in  New  York  the  state  census  of  1905. 


196          AMERICAN  STATE   CONSTITUTIONS 

but  these  local  differences  will  be  disregarded  for  the  sake 
of  uniformity.  In  New  England  the  town  is  so  obviously 
the  unit  that  the  comparison  will  be  made  from  both  units, 
town  and  county. 

I.  In  eighteen  of  the  states  the  constitutions  provide 
for  apportionment  in  both  houses  on  the  basis  of  population, 
a  reapportionment  after  each  census,  and  place  no  restric- 
tions on  this  basis.     These  states  therefore  are  broadly 
democratic  in  this  respect.     The  list,1  it  will  be  noted,  in- 
cludes states  from  all  sections  of  the  United  States. 

II.  In  twenty-four  states,  while  the  census  population  is 
made  the  basis,  there  are  certain  limitations  on  the  repre- 
sentation in  one,  or  it  may  be  in  both  houses,  that  modify 
somewhat  the  principle.     These,  though  on  the  whole  un- 
important, should  yet  be  explained  in  detail : 

Alabama.  The  constitution  provides  that  each  county 
shall  have  at  least  one  member  in  the  house.  There  are 
sixty-seven  counties  in  the  state  but  each  of  these  has  a 
population  at  least  over  one-half  of  the  ratio.  There  are 
therefore  no  limitations  in  fact. 

Arizona.  The  constitution  of  this  state  contains  a  fixed 
apportionment,  which  is  to  hold  "until  otherwise  pro- 
vided by  law/'  There  is  no  provision  for  a  reapportion- 
ment after  each  census.  The  apportionment  in  the  con- 
stitution is  in  general  based  on  the  population  as  estimated 
when  the  convention  was  in  session. 

Arkansas  has  the  same  provision  as  Alabama,  but  though 
there  are  seventy-five  counties,  each  has  at  least  one-half 
the  ratio. 

Florida  provides  that  each  county  have  at  least  one  in 

1  California,  Colorado,  Illinois,  Indiana,  Kentucky,  Massachusetts, 
Michigan,  Minnesota,  Nebraska,  Nevada,  New  Mexico,  North  Dakota, 
Oklahoma,  Oregon,  South  Dakota,  Tennessee,  Washington  and  Wisconsin. 


POPULAR  REPRESENTATION  197 

the  house,  and  no  county  more  than  three.  Of  its  forty- 
seven  counties  eight  have  less  than  one-half  the  ratio  and 
hence  are  over-represented.  The  two  largest  counties 
limited  by  constitution  to  three  each,  are  entitled  by  popu- 
lation to  six  members  each  and  hence  are  under- represented. 

Idaho  requires  that  at  least  one  member  be  assigned  in 
the  senate  to  each  county,  but  of  its  thirty-one  counties 
three  only  have  less  than  one-half  the  ratio. 

Iowa  requires  that  each  county  have  at  least  one  in  the 
house,  and  provides  a  ratio  which  discriminates  against  the 
thickly  settled  counties.  Of  its  ninety-nine  counties  sixty- 
two  are  below  the  population  ratio,  four  of  these  are  below 
the  one-half  ratio,  and  of  its  larger  counties  six,  to  which 
are  assigned  twelve  members,  should  have  by  population 
twenty  members.  This  state  illustrates  the  fact  that  if 
the  constitution  fixes  the  number  of  members,  over-repre- 
sentation on  one  side  involves  under-representation  on  the 
other. 

Kansas  provides  that  each  county  shall  have  at  least  one 
in  the  house,  provided  it  has  at  least  two  hundred  fifty 
voters.  As  its  population  ratio  for  the  house  is  13,528, 
the  smaller  districts  have  too  great  a  representation.  The 
six  counties  of  smallest  population  have  combined  only 
9248  inhabitants,  yet  have  six  members  in  the  house. 
In  fact  there  are  twenty-six  districts  having  less  than  one 
half  the  ratio ;  these  properly  should  have  seven  members 
instead  of  twenty-six.  Hence  by  necessity  the  larger  dis- 
tricts have  too  few  representatives.  The  thirteen  large 
districts,  having  each  a  population  of  over  25,000,  to  which 
twenty-eight  members  are  assigned,  are  really  entitled  to 
forty-five.  This  well  illustrates  the  evil  of  inserting  an 
apparently  simple  condition  without  proper  consideration 
of  consequences. 


198          AMERICAN  STATE   CONSTITUTIONS 

Louisiana  in  its  constitution  of  1913  provides  for  a  de- 
cennial reapportionment  on  the  basis  of  the  federal  census, 
but  with  the  stipulation  that  each  parish  (county)  and  each 
ward  of  New  Orleans  should  have  at  least  one  member. 
Of  the  sixty  parishes  there  are  sixteen  below  the  ratio  but 
above  one-half,  and  there  are  three  in  which  the  popula- 
tions fall  below  one-half  the  ratio.  As  these  have  a  mem- 
ber apiece,  two  of  the  large  parishes  in  consequence  have 
to  bear  the  loss,  losing  two  each  from  their  proper  quota.1 
The  city  of  New  Orleans  however,  has  its  full  proportion 
of  twenty-four  members. 

Maine  by  constitution  provides  that  its  senate  of  thirty- 
one  members  be  apportioned  among  the  counties  in  pro- 
portion to  census  population.  The  present  apportionment 
is  in  strict  accord  with  this  provision. 

The  constitution  also  provides  for  a  division  of  the  one 
hundred  fifty-one  members  of  the  house  among  the  towns 
on  the  basis  of  census  population,  but  adds  a  discriminating 
ratio.  This  will  be  explained  more  fully  later ;  but  so  far 
as  the  house  apportionment  by  counties  is  concerned,  it  is 
exactly  based  on  population. 

Mississippi  also  by  constitution  provides  for  reappor- 
tionment after  each  federal  census,  but  with  the  proviso 
that  each  county  shall  have  at  least  one  member  in  the 
house.  As  the  state  has  seventy-nine  counties,  and  two 
only  fall  below  the  half  ratio,  the  requirement  does  not 
practically  violate  the  principle  of  equal  representation. 

Missouri  by  constitution  provides  that  its  senate  be 
apportioned  among  districts  equal  in  population  and  re- 
apportionment  made  after  each  federal  census. 

In  the  case  of  the  house  however  each  county  must  have 
at  least  one,  and  a  ratio  is  defined  which  discriminates  in 

1  The  parishes  of  Calcasieu  and  St.  Landrey. 


POPULAR  REPRESENTATION  199 

favor  of  the  counties  of  small  population.  Of  the  one  hun- 
dred fifteen  counties  eighty-four  fall  below  a  ratio  based 
on  population,  and  of  these  fifteen  are  below  the  half  ratio. 
The  gain  in  representation  to  these  must  be  made  up  of 
course  by  a  corresponding  loss  to  the  counties  of  larger 
population.  The  five  counties  each  having  a  population 
of  over  50,000,  to  which  seventeen  members  were  assigned, 
should  have  had  by  population  twenty-six,  and  the  city  of 
St.  Louis,  to  which  sixteen  were  assigned,  should  have  had 
thirty  members. 

Montana  provides  that  each  county  shall  have  one  mem- 
ber only  in  the  senate.  Of  its  twenty-eight  counties  nine 
were  below  one-half  of  the  ratio  and  by  population  are 
entitled  to  three  members  only,  and  five  counties,  which 
by  population  were  entitled  to  twelve  members,  had  but 
five.  As  Montana  in  area  is  the  third  largest  state  in  the 
Union,  it  is  easy  to  see  through  multiplication  of  new 
counties  the  possible  development  of  a  " rotten  borough" 
system  within  a  generation  or  two,  unless  this  condition 
should  be  stricken  from  the  constitution. 

New  Hampshire.  The  constitution  of  this  state  is  unique 
in  providing  that  the  senate  of  twenty-four  members  be 
apportioned  one  each  to  twenty-four  districts,  equal  in 
respect  to  the  proportion  of  direct  taxes  paid  by  the  said 
districts.  If  the  districts  as  set  in  1911  be  considered  as 
the  counties,  and  their  populations  ascertained,  the  result 
shows  that  fifteen  fall  below  the  ratio,  though  none  below 
one-half  the  ratio.1  By  population  these  smaller  districts 
should  have  twelve  members  instead  of  fifteen,  the  loss 
falling  on  the  two  largest  districts. 

1  In  population  the  largest  district  is  the  eighteenth,  4i>998  inhabitants; 
the  smallest  is  the  twenty-fourth,  9716  inhabitants.  The  senate  ratio  by 
population  would  be  17,940. 


200          AMERICAN  STATE   CONSTITUTIONS 

The  house  ratio  is  fixed  by  constitution  and  is  on  a  town 
basis.  Disregarding  this  for  the  present,  and  considering 
the  ten  counties  of  the  state  from  the  standpoint  of  census 
population,  it  may  be  seen  that  the  nine  smaller  counties 
should  lose  eight  members  and  these  should  be  added  to 
Hillsboro  County.  As  that  county,  however,  had  one  hun- 
dred eleven  members  in  the  house,  its  interests  are  pre- 
sumably well  guarded,  without  the  help  of  the  missing  eight. 

New  Jersey  by  constitution  makes  up  its  senate  by  one 
delegate  from  each  of  twenty-one  counties.  This  of  course 
produces  great  inequality.  Fourteen  of  the  counties  are 
below  the  ratio  and  nine  of  these  below  the  half  ratio.  This 
necessitates  under-representation  in  the  other  counties. 
Essex  and  Hudson  counties  should  have  by  population  four 
members  each  in  the  senate  and  Passaic  county  two. 

The  constitution  also  provides  that  each  county  have  at 
least  one  in  the  house,  but  as  one  county  only  (Cape  May) 
falls  below  the  one-half  ratio,  the  requirement  involves  no 
real  limitation  on  popular  representation. 

New  York  1  in  Article  III,  Section  4,  of  its  constitution 
requires  a  reapportionment  after  each  state  census  and 
places  many  restrictions  about  the  apportionment  of  its 
senators,  and  in  effect  modifies  somewhat  the  principle  of 
popular  representation  in  this  body.  The  difference,  how- 
ever, is  slight.  District  two,  which  is  assigned  one,  is  by 
population  entitled  to  two.  Kings  county,  which  has 
eight,  should  have  nine,  and  New  York  county  is  entitled 
to  fifteen  but  has  twelve.  Provision  is  made  that  no 
county  shall  have  more  than  one- third  of  all  the  senators, 
and  no  two  adjoining  counties  more  than  one-half,  but 
these  maxima  do  not  as  yet  apply  to  New  York  and  Kings 
counties. 

1  Apportionment  of  1907,  based  on  state  census  of  1905. 


POPULAR  REPRESENTATION  201 

Section  5  provides  a  ratio  and  other  regulations  for  the 
apportionment  of  assemblymen.  Among  these  provisions 
is  found  the  familiar  requirement  that  every  county  (except 
Hamilton)  shall  have  at  least  one  member  in  the  assembly. 
As  the  house  ratio  by  population  is  53,782  this  requirement 
makes  havoc  with  popular  representation.  Seven  districts 
fall  below  the  half  ratio  and  twenty-five  are  between  one- 
half  and  the  full  ratio.  In  addition  to  these  single-member 
districts,  two  of  the  larger  districts  have  a  representative 
each  too  many.  The  over-representation  of  these  thirty- 
four  districts  necessitates  as  usual  the  under-representation 
of  the  largest  districts.  Kings  county,  which  by  population 
should  have  twenty-five,  has  twenty- three ;  and  New  York 
county  should  add  nine  to  its  allotment  of  thirty-five 
members. 

North  Carolina  modifies  equal  representation  in  the  house 
by  defining  in  constitution  the  ratio,  and  by  the  require- 
ment that  each  county  must  have  at  least  one  representa- 
tive. Of  the  ninety-eight  counties  forty-five  fall  below 
the  population  ratio  and  eleven  of  these  below  the  half 
ratio.  This  gain  for  the  counties  of  smaller  population  is 
made  up  by  corresponding  losses  to  the  counties  of  larger 
population.  Fifteen  counties  having  one  member  each 
assigned,  should  have  two ;  three  having  two  each  should 
have  three ;  and  two  having  three  each  should  have  four. 

Ohio  also  has  the  familiar  requirement  that  each  county 
shall  have  at  least  one  member  in  the  house  (amendment 
1903),  and  also  fixes  a  ratio  in  the  constitution  which  com- 
plicates the  apportionment.  In  the  legislature  of  1912 
there  were  one  hundred  eighteen  members,  and  the  five 
counties  that  contain  a  population  each  over  150,000 
should  have  forty-one  members  as  their  proportionate  share, 
but,  instead,  by  apportionment  have  only  twenty-seven 


202          AMERICAN  STATE   CONSTITUTIONS 

members,  fourteen  less  than  their  proportionate  share.  Of 
the  remaining  eighty- three  counties  fifty-nine  are  below 
the  ratio,  and  ten  of  these  below  the  half  ratio.  By  popu- 
lation these  fifty-nine  counties  are  entitled  to  just  thirty- 
nine  members,  but  in  fact  have  sixty. 

Pennsylvania  by  constitution  provides  that  its  fifty  sena- 
tors be  assigned  in  proportion  to  population,  but  with  the 
proviso  that  no  city  or  county  shall  have  more  than  one- 
sixth.  This  limits  Philadelphia  to  eight  members,  though 
by  population  entitled  to  ten. 

For  the  house  a  ratio  is  fixed  by  constitution  and  pro- 
vision made  that  each  county  have  at  least  one  member. 
The  constitution  sets  no  maximum  to  the  membership  and 
this  by  last  apportionment  was  fixed  at  two  hundred  and 
seven.  If  the  population  ratio  were  used,  the  eleven  large 
counties,  'having  a  population  of  over  150,000  each,  includ- 
ing the  city  of -Philadelphia,  would  have  one  hundred  twenty- 
one  members  instead  of  one  hundred  ten,  nine  of  these 
counties  sharing  the  loss.  Of  the  remaining  fifty-six 
counties  twenty  are  below  the  ratio,  and  ten  of  these  below 
the  half  ratio.  These  ten  by  population  should  have  four 
members  only  instead  of  ten. 

South  Carolina  requires  that  each  county  have  but  one 
member  in  the  senate.  Of  the  forty-three  counties  twenty- 
five  fall  below  the  ratio,  and  one  below  the  half  ratio. 
There  are  seven  counties  containing  each  a  population 
entitling  it  to  two  or  more  members,  unitedly  they  should 
have  thirteen  members,  and  hence  lose  six  to  the  smaller 
counties.  By  constitution  each  county  also  must  have  at 
least  one  in  the  house,  but  all  the  counties  have  populations 
above  the  house  ratio. 

Texas  has  a  small  senate  of  thirty-one  members,  and 
provides  by  constitution  that  no  single  county  may  have 


POPULAR  REPRESENTATION  203 

more  than  one  member.  In  fact,  however,  no  county  has 
a  population  in  excess  of  the  ratio  and  there  is  therefore  no 
real  limitation. 

Utah  has  a  requirement  that  each  county  have  at  least 
one  in  the  house.  Of  its  twenty-seven  county-districts 
sixteen  are  below  the  ratio  and  nine  of  these  below  the  half 
ratio.  These  counties  by  population  should  have  eight, 
not  sixteen  members.  The  more  populous  districts  must 
therefore  lose  their  proper  proportion.  Two  districts  lose 
one  each  (Utah  and  Boxelder  counties),  and  one  (Salt 
Lake)  has  ten,  though  entitled  by  population  to  sixteen.. 

Virginia  has  no  constitutional  restriction  on  representa- 
tion but  in  its  new  constitution  (1902)  accepts  the  statutory 
apportionment  of  April  2,  1902,  permits  a  reapportionment 
in  1906,  and  orders  one  in  1912  and  every  tenth  year  there- 
after. In  1906  the  apportionment  of  the  House  was  con- 
tinued without  change  and  no  reapportionment  was  passed 
in  1 9 1 2  or  in  1 9 1 4 .  An  examination  of  the  apportionment  of 
1902  shows  it  to  be  substantially  in  accord  with  population. 
The  senate  of  forty  is  rightly  apportioned;  in  the  house 
of  one  hundred  members  five  large  districts  are  short  one 
each,  to  make  up  for  a  slight  over-apportionment  to  dis- 
tricts below  a  full  ratio.  No  district  however  falls  below 
one-half  ratio. 

West  Virginia  fixes  in  its  constitution  the  method  of 
computing  the  house  apportionment  and  grants  each 
county  one  delegate.  The  last  apportionment  is  on  the 
basis  of  population ;  for  of  the  fifty-five  counties  none  fall 
below  the  half  ratio,  though  seventeen  are  between  the 
half  and  the  full  ratio. 

Wyoming  requires  by  constitution  that  each  of  its  four- 
teen counties  shall  have  at  least  one  in  each  house.  In  the 
present  apportionment  of  1911  this  results  in  the  gain  to 


204          AMERICAN  STATE   CONSTITUTIONS 

the  counties  of  small  population  of  one  in  the  senate  (twenty- 
seven  members) ,  and  three  in  the  house  (fifty-six  members) , 
and  the  consequent  loss  of  these  to  the  more  thickly  settled 
counties.  Yet  as  no  county  is  below  the  half  ratio  for 
either  house,  the  requirement  works  no  real  hardship  on  the 
larger  counties. 

III.  In  six  of  the  states  the  restrictions  placed  on  popu- 
lar representation  are  especially  severe.  These  will  now 
be  considered  in  turn. 

Connecticut  by  constitution  divides  the  membership  of 
thirty-five  in  the  senate  among  the  counties  in  proportion 
to  population, -with  the  proviso  that  each  county  have  at 
least  one.  The  assignment  in  1914  is  not  sufficiently  accu- 
rate. Each  of  the  eight  counties  has  a  population  suffi- 
cient to  entitle  it  to  at  least  one;  Litchfield,  Middlesex 
and  Windham  counties  have  each  one  in  excess  of  their 
pro  rata,  and  these  are  lost  to  Fairfield,  Hartford  and  New 
Haven  counties. 

The  house  is  composed  of  two  hundred  fifty-eight  mem- 
bers and  assignment  is  made  on  the  town  basis.  If,  how- 
ever, the  representation  by  counties  be  considered,  five1 
rural  counties,  to  which  one  hundred  forty  members  are 
assigned,  should  properly  have  but  sixty-five,  and  three  2 
counties,  assigned  one  hundred  eighteen  members,  should 
have  by  population  one  hundred  ninety-three. 

Delaware.  The  apportionment  to  the  three  counties  of 
Delaware  is  fixed  by  constitution  and  no  provision  made 
for  alteration.  In  the  senate,  Newcastle,  Sussex,  and  Kent 
counties  are  assigned  seven,  five,  five  members,  but  are  by 
population  entitled  to  ten,  four,  and  three  members  re- 
spectively. In  the  house  they  are  assigned  fifteen,  ten, 

1  New  London,  Windham,  Litchfield,  Middlesex,  Tolland. 

2  Hartford,  New  Haven,  Fairfield. 


POPULAR  REPRESENTATION  205 

and  ten,  but  should  have  twenty-one,  eight,  and  six  re- 
spectively. In  Newcastle  county  the  City  of  Wilmington 
is  assigned  two  and  five  members  in  the  houses,  but  should 
have  seven  and  fifteen  members  by  population.  This 
injustice  in  apportionment  will  grow  worse  rather  than 
better,  owing  to  the  rigidity  of  the  constitutional  provisions. 

Georgia  fixes  in  constitution  its  forty-four  senatorial 
districts,  but  allows  a  readjustment  after  each  federal 
census.  In  the  apportionment  of  1906  the  seven  largest 
districts  by  population  should  have  fourteen  members 
instead  of  seven.  This  is  necessitated  by  the  fact  that 
twenty-six  districts  fall  below  the  ratio  and  four  of  these 
even  below  the  half  ratio.  These  senatorial  districts  were 
set  in  the  present  constitution  of  1877  and  have  been  con- 
tinued without  modification  for  over  thirty  years,  except 
that  to  eleven  of  the  districts  new  counties  have  been 
added  and  slight  readjustments  made.  The  other  thirty- 
three  districts,  including  the  two  most  populous,  have  re- 
mained unchanged. 

As  for  the  house  of  one  hundred  eighty-four  members 
the  constitution  divides  the  one  hundred  forty-six  counties 
into  three  classes,  and  orders  an  assignment  of  three  mem- 
bers each  to  the  six  largest  counties;  two  each  to  the 
twenty-six  counties  next  in  size ;  and  one  each  to  the  one 
hundred  fourteen  remaining.  Had  the  apportionment 
been  in  proportion  to  population,  the  six  largest  counties 
would  have  had  thirty-one  members  instead  of  eighteen; 
the  twenty-six  counties  would  have  forty-nine;  and  the 
hundred  and  fourteen  counties,  one  hundred  and  three. 
But  of  the  counties  in  the  third  class  five  should  have  had 
two  each,  seventeen  fall  below  even  the  one-half  ratio, 
and  fifty-five  others  range  between  the  half  and  the  full 
ratio,  a  plain  discrimination  against  urban  centers. 


206          AMERICAN  STATE   CONSTITUTIONS 

Maryland  in  its  constitution,  as  amended,  provides  that 
each  county  shall  have  in  the  senate  one  member,  and 
Baltimore  city  four,  making  a  total  of  twenty-seven  mem- 
bers, since  there  are  twenty-three  counties  and  the  city 
district.  This  is  far  from  being  in  accord  with  population, 
as  nineteen  of  the  twenty-three  counties  are  below  ratio, 
and  eleven  of  these  even  below  the  half  ratio.  By  popula- 
tion these  should  have  nine  instead  of  nineteen  members. 
In  consequence  the  more  populous  districts  suffer;  Balti- 
more county  should  have  three,  and  the  city  is  entitled  to 
twelve. 

The  same  objection  lies  against  the  apportionment  of  the 
house  of  one  hundred  and  two  members.  A  ratio  is  care- 
fully denned  in  the  constitution  which  discriminates  in 
favor  of  the  smaller  districts  and  fixes  a  maximum  for  the 
city  of  Baltimore.  The  effect  of  this  is  that  twenty- two 
counties  which  should  have  forty-eight  members  have 
seventy- two,  the  county  of  Baltimore  has  six  but  should 
have  ten,  and  the  city  of  Baltimore  has  twenty-four  but 
should  have  been  assigned  by  population  forty-four  members. 

Rhode  Island  by  constitution  apportions  its  thirty-nine 
senators  one  to  each  town  or  city.  By  county  *  population 
this  means  that  the  four  counties  of  smaller  population 
should  have  nine  senators  only  instead  of  the  twenty-three 
assigned,  and  that  Providence  county,  the  only  other 
county,  should  have  thirty  instead  of  sixteen. 

Constitutional  provisions  in  regard  to  the  house  require 
that  each  town  shall  have  at  least  one,  and  no  city  more 
than  one-fourth  of  the  whole  number  (100).  From  the 
standpoint  of  county  population  the  four  smaller  counties 
should  have  twenty-two  instead  of  thirty-two  members, 

1  The  county  in  Rhode  Island  is  merely  a  judicial  district  or  districts 
and  has  no  administrative  unity. 


POPULAR  REPRESENTATION  207 

and  Providence  county  should  gain  the  ten,  making  its 
total  seventy-eight. 

Vermont  requires  that  its  senate  of  thirty  members  be 
apportioned  among  the  counties  in  proportion  to  census 
population,  but  that  each  county  must  have  at  least  one. 
The  county  of  Grand  Isle  has  less  than  one-half  the  ratio, 
and  the  member  assigned  to  this  county  is  lost  by  Wash- 
ington county,  which  has  three  members  instead  of  four. 

Representation  in  the  house  of  two  hundred  forty-six 
members  is  by  towns  and  will  be  presented  later.  If  the 
population  of  the  fourteen  counties  however  be  considered, 
it  may  be  seen  that  the  seven  smaller  counties  have  twenty- 
eight  members  assigned  in  excess  of  their  population,  and 
this  number  is  taken  from  the  seven  large  counties 

THE  NEW  ENGLAND  STATES 

As  these  states  emphasize  on  the  whole  the  town  as  the 
basis  of  representation  rather  than  the  county,  their  system 
of  representation  will  now  be  presented  from  the  standpoint 
of  the  town  system. 

Of  these  six  states  Massachusetts  only  apportions  the 
membership  of  both  houses  purely  on  the  basis  of  (voting) 
population,  after  each  state  census.  The  representation 
in  the  lower  house  is  assigned  to  the  counties,  and  then 
reapportioned  among  the  towns  in  proportion  to  their  re- 
spective voting  population.  Maine  follows  the  same  pro- 
cedure but  specifies  a  ratio  which  gives  the  rural  towns  an 
advantage  over  urban  centers.  Seven  counties  only  con- 
tain urban  centers  of  a  population  over  7000,  and  these, 
eleven  in  number,  are  assigned  thirty-three  members, 
though  by  population  entitled  to  forty-one.  These  eight 
members  are  gained  by  the  rural  towns  in  the  same  counties. 
Portland,  the  largest  city  in  the  state,  is  naturally  the 


208          AMERICAN  STATE   CONSTITUTIONS 

heaviest  loser,  having  seven  members  though  entitled  to 
twelve. 

New  Hampshire  apportions  the  membership  of  the  lower 
house  directly  to  the  towns  and  city  wards,  on  the  basis  of 
population,  but  by  a  set  ratio  which  discriminates  some- 
what in  favor  of  the  county  towns.  Its  house  is  the 
largest  in  membership  among  the  states,  though  in  popu- 
lation the  state  ranks  as  thirty-ninth.  The  size  of  the 
membership  varies  somewhat  from  session  to  session  owing 
to  a  sort  of  sliding  scale  of  representation  for  the  smallest 
districts  or  towns;  but,  for  the  sessions  from  1912-1920 
the  average  membership  is  406.  There  are  eighty-four  of 
these  small  districts  each  having  a  population  less  than  600, 
and  these  unitedly  average  fifty-two  members.  There  are 
also  131  town  or  ward  single-member  districts,  41  two- 
member  districts,  20  three-member  districts,  and  fourteen 
districts  with  memberships  ranging  from  four  to  nine 
members  each,  totaling  81  members.  These  larger  districts 
include  eleven  incorporated  cities  having  a  population 
entitling  them  to  185  members  instead  of  the  165  assigned. 
Among  these  Manchester,  the  largest  city,  is  entitled  by 
population  to  67  members  but  has  59.  These  losses  of 
course  are  gained  by  the  smaller  towns.  Relatively  how- 
ever to  the  size  of  the  house  these  discriminations  are 
comparatively  insignificant. 

The  other  three  New  England  states  are  by  no  means 
so  equitable  in  their  representation.  In  theory  they  seek 
to  make  one  house  popular  in  basis,  and  the  other  represen- 
tative of  the  towns  irrespective  of  population. 

Vermont,  for  example,  assigns  the  membership  of  the 
senate  to  the  counties  on  the  basis  of  population,  but  makes 
up  its  lower  house  of  two  hundred  forty-six  members  by 
one  delegate  from  each  town  or  city  in  the  state.  Ninety 


POPULAR  REPRESENTATION  209 

of  these  towns  have  a  population  each  lower  than  one-half 
the  ratio,  and,  if  properly  represented,  would  have  but 
twenty-five  members.  There  are  one  hundred  twenty 
towns  having  each  a  population  between  one-half  and  one 
and  a  half  ratios.  These  have  twenty- two  members  in 
excess  of  their  population.  There  are  thirty-six  towns  and 
cities  having  each  a  population  over  one  and  a  half  ratios, 
to  which  should  be  assigned  on  a  population  basis  one 
hundred  twenty- three  members.  The  three  largest  cities 
combined  should  by  population  have  thirty-one  members 
instead  of  three.  The  largest  city,  Burlington,  should  have 
fourteen  members  instead  of  one.  Contrast  with  the  three 
cities  the  three  smallest  towns,  which  have  a  combined 
population  of  one  hundred  ten  persons ;  these  are  presum- 
ably fully  represented  by  their  three  delegates  in  the 
house ! 

Connecticut  likewise  assigns  its  membership  in  the  senate 
on  the  basis  of  population,  and  in  the  apportionment  of 
1914  divides  two  hundred  fifty-eight  members  of  the  house 
among  the  towns  or  cities,  assigning  one  or  two  members 
to  each.  There  are  seventy-eight  single-member  districts, 
and  ninety  having  two  members  each.  This  difference  in 
representation  is  historic,  and  not  based  on  population. 
Of  these  one  hundred  sixty-eight  districts,  ninety  are  towns 
having  each  a  population  less  than  one-half  the  ratio. 
They  have  one  hundred  and  twenty-four  members  but 
should  have  by  population  twenty- three.  Thirty-four  of 
the  ninety  towns  are  two-member  districts,  and  in  place  of 
sixty-eight  members  should  have  by  population  eleven 
members.  There  are  forty-five  towns  each  having  a  popu- 
lation between  a  half  ratio  and  a  ratio  and  a  half.  These 
have  sixty-eight  members,  though  by  population  entitled 
to  thirty-nine.  Twenty-three  of  these  districts  have  two 


210          AMERICAN  STATE   CONSTITUTIONS 

members  each ;  their  representation  by  population  should 
be  twenty-two.  The  remaining  towns,  the  thirty-three 
largest  towns  or  cities  are  all  double-member  districts  and 
hence  have  a  combined  representation  of  sixty-six  members. 
By  population  they  are  entitled  to  one  hundred  ninety-six 
members.  The  injustice  of  this  may  easily  be  seen  by 
noting  the  extremes.  The  four  smallest  towns  have  a  com- 
bined population  of  1,358,  less  than  one-half  ratio,  yet  have 
five  members.  The  four  largest  cities  have  a  combined 
population  of  407,715  and  should  have  ninety-four  mem- 
bers, instead  of  the  eight  assigned  by  constitution.  The 
town  of  Union  with  a  population  of  322  has  the  same  repre- 
sentation in  the  house,  (two  members),  as  New  Haven  with 
a  population  of  133,605. 

Rhode  Island  uses  its  house  as  the  apparently  popular 
body,  and  makes  up  its  senate  by  one  member  from  each 
town  or  city.  The  constitution  however  requires  that  each 
town  must  have  at  least  one  member  in  the  house  of  one 
hundred  members,  and  that  no  city  shall  have  more  than 
one-fourth  of  the  total  membership.  There  are  thirty- 
nine  towns  and  cities  in  the  state,  and  fifteen  of  these  have 
each  a  population  less  than  one-half  the  house  ratio.  In- 
stead of  fifteen  members  these  towns  properly  should  have 
four.  Eleven  towns  have  each  a  population  between  a  half 
ratio  and  a  ratio  and  a  half.  Twelve  members  are  assigned 
to  these  instead  of  ten,  their  proper  representation  by  popu- 
lation. There  are  seven  large  towns  and  six  cities  to 
which  properly  eighty-six  members  should  be  allotted,  but, 
owing  to  the  limitations  already  mentioned,  seventy-three 
members  only  are  assigned.  This  loss  really  largely  falls 
on  the  city  of  Providence,  which  by  constitution  is  limited 
to  twenty-five  members  though  its  population  entitles  it  to 
forty-one,  a  discrimination  against  urban  interests. 


POPULAR  REPRESENTATION  211 

The  Senate  is  made  up  of  a  member  from  each  of  the 
thirty-nine  towns  and  cities.1  Twenty-five  of  these  fall 
below  the  half  ratio  and  should  have  by  population  five 
members  only.  Eight  towns  have  populations  between  the 
half  ratio  and  a  ratio  and  a  half,  and  should  have  six  in- 
stead of  eight  members.  The  six  remaining  districts  of 
large  population  should  have  twenty-eight  senators  in 
place  of  the  six  allotted  by  constitution. 

The  six  cities  unitedly  have  a  population  of  385,083  or 
seventy-one  per  cent  of  the  whole.  They  should  have 
seventy-one  of  the  one  hundred  house  members  and  twenty- 
eight  of  the  thirty-nine  senators.  In  fact  they  have  fifty- 
seven  members  in  the  house,  a  bare  majority,  and  six  in 
the  senate,  or  fifteen  per  cent  of  the  whole.  By  contrast 
the  six  smallest  towns  have  a  combined  population  of 
5,845,  or  one  per  cent  of  the  whole,  and  yet  are  represented 
by  six  members  in  each  house.  The  city  of  Providence 
which  by  constitution  is  restricted  to  one  member  in  the 
senate  and  twenty-five  in  the  house,  should  by  population 
have  sixteen  in  the  senate  and  forty-one  in  the  house. 

By  taking  into  account  the  towns  of  smallest  population, 
the  majority  in  each  house  is  theoretically  controlled  by 
7.6  per  cent  of  the  population  in  the  senate  and  thirty- 
seven  per  cent  in  the  house.  If  both  houses  met  in  joint 
session  for  any  purpose,  the  thirty-two  smallest  towns  con- 
taining twenty-six  per  cent  of  the  population  of  the  state, 
could  cast  72  out  of  the  139  votes  of  the  grand  committee. 

Such  a  system  of  misrepresentation  as  this,  and  those  of 

1  In  the  revision  report  of  the  Commission  of  1915,  a  recommendation  is 
made  that  the  senate  be  reapportioned  into  forty-three  districts,  substan- 
tially on  the  basis  of  population,  but  fixing  a  maximum  of  ten  for  any  one 
city.  Providence,  which  by  population  should  have  eighteen  members, 
would  therefore  lose  eight  to  the  smaller  districts.  See  p.  102  respecting 
this  commission. 


212          AMERICAN   STATE   CONSTITUTIONS 

Connecticut  and  Vermont,  cannot  be  justified  by  any 
theory  of  democracy,  and  are  entirely  at  variance  with  the 
great  American  principle  of  popular  sovereignty.  These 
three,  and  to  a  lesser  degree,  the  other  three  states  of  class 
III,  are,  however,  glaring  exceptions  to  the  general  rule. 
The  remaining  forty-two  states  are  practically  democratic 
in  their  representation,  and  in  due  time  these  six  also  pre- 
sumably will  conform  to  established  democratic  usage. 

THE  NATIONAL  CONGRESS 

As  a  basis  of  comparison  the  inequalities  in  the  national 
congress,  chiefly  in  the  senate,  may  well  be  stated,  though 
it  should  be  clearly  understood  that  the  situation  is 
altogether  different  in  fact.  The  senate  is  a  federal  body, 
like  the  German  federal  Bundesrat,  and  by  agreement, 
through  compromise  in  the  convention,  is  made  up  of  two 
representatives  from  each  state,  regardless  of  population. 
Towns  and  counties  within  the  states  have  no  such  sov- 
ereign basis  for  their  claims,  since  they  are  merely  adminis- 
trative units,  bodies  politic,  entirely  subordinate  to  the 
state  and  can  claim  no  undue  representation  based  on  in- 
herent right. 

The  national  house  of  representatives  is  based  on  popu- 
lation, except  that  every  state  must  have  at  least  one 
member.  As  only  four  states  are  below  the  ratio  and  but 
one  of  these  below  the  half  ratio,  there  is  no  real  inequality. 
These  four  states  by  population  would  in  any  case  be 
entitled  to  three  members,  so  that  one  member  only  is  lost 
to  the  other  forty-four  states. 

If  however  the  membership  in  the  senate  were  assigned 
on  the  basis  of  population,  seventeen  states  would  be  found 
to  be  below  the  ratio  and  ten  of  these  below  the  half  ratio. 
The  seventeen  combined  would  be  entitled  to  eight  members 


POPULAR  REPRESENTATION  213 

instead  of  thirty-four.  In  addition  to  these  seventeen 
states,  the  five  next  larger  states  would  have  one  senator 
each,  and  the  fifteen  next  in  population  unitedly  would 
have  thirty-one.  Of  the  eleven  remaining  states  five 1 
would  have  three  each ;  Texas  and  Massachusetts  would 
have  four  each,  and  New  York,  Pennsylvania,  Illinois  and 
Ohio  would  respectively  have  ten,  eight,  six,  and  five 
members.  The  ten  states  of  largest  population  have 
slightly  in  excess  of  one-half  the  population  of  the  states 
and  should  have  by  population  a  bare  majority  in  the 
Senate,  namely  forty-nine  members. 

1  Missouri,  Michigan,  Indiana,  Georgia,  New  Jersey. 


CHAPTER  XVII 
LIMITATIONS  ON  THE  LEGISLATURE 

A  STATE  has  original,  not  delegated,  powers.  It  can 
legally  do  whatsoever  it  pleases  within  its  own  borders, 
subject  only  to  such  regulations  and  prohibitions  as  may 
be  found  in  the  national  constitution.  The  legislature,  as 
the  representative  of  the  people,  may  exercise  all  these  vast 
powers  at  its  discretion.  The  executive  and  the  judicial 
departments  have  no  such  authority.  The  power  to  make 
law  includes  the  power  to  regulate,  alter,  or  even  abolish 
these  departments.  In  other  words  in  democracies  the 
legislature  is  legally  omnipotent.  The  legislatures  of  our 
states  during  the  revolutionary  period  really  wielded  this 
immense  power,  but  every  generation  since'  that  time  has 
witnessed  the  gradual  diminution  of  it.  This  process  has 
already  in  part  been  outlined ;  the  adoption  of  the  theory 
of  the  separation  of  powers  brought  about  the  transfer  of 
certain  powers,  very  slight  at  first,  through  the  written 
constitution  to  the  executive  and  judicial  departments; 
then  the  right  to  make  fundamental  law  was  transferred 
to  the  convention  and  to  the  electorate  through  the  referen- 
dum ;  now  the  power  over  administration  is  rapidly  pass- 
ing from  the  legislature  to  the  executive,  and  judicial 
organization  and  powers  are  quite  fully  set  by  the  conven- 
tion, which  leaves  to  the  legislature  merely  the  petty  details 
of  judicial  regulation. 

Legislatures  would  however  still  remain  the  most  powerful 

214 


LIMITATIONS  ON  THE  LEGISLATURE        215 

of  the  three  departments,  if  their  right  to  make  statutes 
were  left  untouched,  but  even  this  privilege  is  denied  them 
in  part.  Attention  has  already  been  called  to  the  fact  that 
conventions,  wisely  or  unwisely,  place  statutes  in  recent 
constitutions.  A  twelve-thousand-word  judiciary  article 
in  the  Louisiana  constitution,  and  a  six-thousand-word 
article  on  corporations  in  the  Virginia  constitution,  show 
this  tendency  clearly.  In  fact  every  detailed  command, 
prohibition,  or  regulation  in  a  constitution,  is  in  effect  a 
usurpation  of  the  statute-making  power  of  legislatures,  so 
that,  in  a  sense,  the  length  of  a  constitution  roughly  indi- 
cates the  amount  of  limitation  placed  on  legislatures. 

THE  STATUTORY  INITIATIVE  AND  REFERENDUM1 

In  addition  to  this  loss  of  power  mentioned  above,  the 
electorate,  working  through  the  convention  and  the  con- 
stitutional referendum,  has  taken  from  the  legislature  large 
powers  in  the  making  of  statutes,  by  the  assertion  of  its 
right  to  initiate  bills,  and  to  have  these  or  any  others 
referred  to  it  as  the  final  authority  in  decision.  This 
famous  movement  came  into  prominence  through  the 
Oregon  amendment  of  1902  which  reads,  "The  legislative 
authority  of  the  state  shall  be  vested  in  a  legislative  assem- 
bly, .  .  .  but  the  people  reserve  to  themselves  power  to 
propose  laws  and  amendments  to  the  constitution,  and  to 
enact  or  reject  the  same  at  the  polls,  independent  of  the 
legislative  assembly,  and  also  reserve  power  at  their  own 
option  to  approve  or  reject  at  the  polls  any  act  of  the 
legislative  assembly.  The  first  power  reserved  by  the 
people  is  the  initiative.  .  .  .  The  second  power  is  the  ref- 
erendum." The  amendment  later  provides  that  the  style 
of  all  bills  shall  be:  "Be  it  enacted  by  the  people  of 
1  See  pp.  147-9- 


2i6          AMERICAN  STATE  CONSTITUTIONS 

the  State  of  Oregon"  (formerly  "by  the  Legislative  As- 
sembly.") 

Unquestionably  the  sudden  rise  into  prominence  of  the 
electorate  as  a  prime  agent  in  the  work  of  government  is  the 
most  remarkable  phenomenon  in  the  history  of  American 
state  constitutions.  The  potential  "sovereignty  of  the 
people"  has  been  asserted  from  the  beginning,  but  chiefly 
as  a  theory  which  the  "more  intelligent"  hoped  would 
never  be  put  into  practice.  The  prevalent  profound  dis- 
satisfaction with  the  personnel  of  legislatures  and  the 
quality  of  work  performed  by  them  suddenly  came  to  a 
climax  when  the  western  states  began  to  devise  schemes 
for  the  initiative)  referendum,  and  the  later  recall.  This 
development  has  resulted  in  the  most  important  limitation 
next  to  the  constitutional  convention,  yet  developed  against 
the  supremacy  of  legislatures.  The  animus  of  the  move- 
ment is  seen  when  one  notes  passing  into  the  constitution, 
as  indicated  above,  the  enacting  phrase,  "Be  it  enacted  by 
the  people  of  .  .  ."  instead  of  the  more  familiar  word  "  legis- 
lature." It  indicates  that  the  legislature  is  no  longer  the 
repository  of  lawmaking  authority  but  yields  place  to  the 
electorate,  as  the  real  voice  of  the  people.  In  Chapter  XI 
attention  was  called  to  the  growth  of  the  constitutional 
initiative ;  the  underlying  principles  and  the  procedure  of 
the  statutory  initiative  are  in  many  respects  the  same,  but 
there  are  differences  and  these  will  now  be  presented,  along 
with  the  system  as  a  whole,  including  the  referendum. 

This  legislative  limitation  consists  in  the  right  reserved 
in  the  constitution  to  the  people  (voters)  of  determining 
finally  what  laws  shall  be  enacted.  In  its  simple  form  it  is 
virtually  a  veto,  since  any  particular  law  passed  by  the 
legislature,  becomes  subject  to  a  referendum  on  demand 
or  petition  of  a  given  per  cent  of  the  voters.  This  may  be 


LIMITATIONS  ON  THE  LEGISLATURE        217 

partly  evaded  if  the  constitution  provides  that  bills,  which 
ordinarily  would  not  go  into  effect  until  sixty  or  ninety 
days  after  adjournment,  may  be  put  into  immediate  effect 
by  a  declaration  of  emergency.  This  is  met  by  a  require- 
ment that  the  reasons  for  the  emergency  be  expressly 
stated,  and  voted  on  separately  by  a  yea  and  nay  vote, 
and  by  the  provision  that  even  emergency  measures  shall 
still  remain  subject  to  the  referendum. 

The  next  logical  step  in  the  development  is  to  provide 
that  the  voters  by  petition  1  may  initiate  any  measure,  and 
this  method,  as  in  the  case  of  the  constitutional  initiative, 
may  be  direct  or  indirect :  it  is  direct  when  it  passes  im- 
mediately to  the  secretary  of  state  and  by  him  is  placed 
on  the  ballot  at  the  next  election ;   it  is  indirect,  when  the 
proposed  bill  is  submitted  to  the  legislature  first  and  is 
then  referred,  after  some  action,  or  failure  to  act,  on  the 
part  of  that  body.     A  " campaign  of  education"  follows 
through  the  publicity  pamphlet  or  other  method  of  adver- 
tising, and  on  the  day  set  a  vote  is  taken  on  the  referendum, 
which  is  adopted  if  it  receives  the  usual  "  majority  of  those 
voting  thereon,"  or  some  severer  requirement.     If  to  this 
initiation  and  referendum  of  statutory  bills  is  added  the 
constitutional   initiative  and  referendum ;  and  if  the  same 
principles  furthermore  are  then  applied  to  the  charter  and 
ordinance  making  of  local  bodies-politic,  such  as  counties, 
towns,  cities  and  villages,  the  process  has  reached  its  com- 
pletion, since  the  electorate  is  in  control  of  constitution, 
statute,  and  ordinance.     A  state  in  its  conservatism  may 
venture  gingerly  into  this  new  field  and  provide  only  for 
the  statutory  referendum,  hedged  about  with  many  pre- 
cautions  and   severe   requirements;    but   as  it  becomes 

1  For  explanations  respecting  the  petition,  see,  Equity,  April,  1914,  PP- 

80-85. 


218          AMERICAN  STATE   CONSTITUTIONS 

bolder  with  experience  it  broadens  out  into  the  statutory 
initiative,  and  at  last  emerges  definitely  into  the  full  sweep 
of  change  by  adding  on  the  other  provisions,  simplifying 
the  methods  to  be  employed,  and  adopting  a  state  wide 
recall  for  every  public  officer.  The  amendment  to  the  con- 
stitution authorizing  these  measures  may  be  declared  to 
be  self-executing,  giving  instructions  to  the  secretary  of 
state  to  put  them  into  effect ;  or  they  may  require  action 
of  the  legislature  in  order  to  put  them  into  effect,  through 
the  detailed  specifications  of  an  "  enabling  act."  This 
latter  method  has  not  always  proved  satisfactory,  as  may 
be  seen  for  instance,  in  the  cases  of  Utah  and  Idaho. 

At  the  close  of  the  year  1914  nineteen  states  had  adopted 
some  form  or  other  of  the  statutory  initiative  and  referen- 
\durn.  In  view  therefore  of  the  importance  of  this  move- 
ment a  very  brief  statement  will  be  made  about  the  system 
adopted  in  each  of  these  states,  noting  how  the  weaknesses 
of  the  earlier  methods  gradually  are  eliminated. 

South  Dakota  began  the  reform  by  providing  in  1898  for 
an  indirect  statutory  initiative  and  the  referendum,  allow- 
ing the  legislature  to  declare  an  emergency  by  a  majority 
vote.  It  is  said  that  over  forty  per  cent  of  South  Dakota's 
statutes  are  now  marked  "  emergency."  The  amendment 
further  provides  that  the  referenda  should  be  printed  in 
full  on  the  ballot,  but  in  1910  the  publicity  pamphlet  was 
adopted,  the  ballot  that  year  being  "six  feet  long"!  In 
1900  Utah  added  by  amendment  a  similar  system  in  prin- 
ciple, but  left  to  the  legislature  the  power  of  putting  this 
into  effect  through  an  enabling  act.  This  the  legislature 
has  not  done,  so  that  Utah  does  not  in  fact  have  the  initia- 
tive and  referendum.  Oregon  in  1902,  as  already  explained, 
adopted  its  famous  amendment  which  provides  for  the 
direct  initiative  on  (constitutional  amendments  and) 


LIMITATIONS  ON  THE  LEGISLATURE        219 


statutes  by  a  petition  signed  by  eight  per  cent  of  the 
voters,  and  for  a  referendum  on  a  petition  of  five  per  cent. 
The  detail  of  this  provision  (Article  IV.  Section  i)  has  been 
quite  largely  copied,  but  modified  in  part  by  the  improve- 
ments of  the  later  California  system.  In  1905  Nevada 
adopted  a  restricted  and  useless  statutory  referendum 
amendment,  requiring,  for  example,  the  expensive  method 
of  advertising  through  newspapers,  and  "a  majority  of 
the  electors  voting  at  a  state  election."  In  1912  however 
the  state  amended  by  providing  for  a  self-executing  indirect 
(constitutional  and)  statutory  initiative,  and  a  referendum 
decided  by  "a  majority  of  those  voting  thereon." 

In  1906  Montana  adopted  the  direct  statutory  initiative 
and  the  referendum,  both  so  hedged  about  with  restrictions 
as  to  be  of  small  use,  owing  to  the  difficulty  and  expense 
involved  in  securing  signatures  to  petitions.  Oklahoma  in 
its  new  constitution  of  1907  provided  for  the  (constitu- 
tional and)  statutory  initiative  and  the  referendum,  adding 
that  a  rejected  measure  might  not  be  again  initiated  until 
after  at  least  three  years,  except  by  a  petition  signed  by  at 
least  twenty-five  per  cent  of  the  voters.  Its  chief  objec- 
tionable feature  was  the  requirement  on  referendum  of  a 
majority  of  the  votes  cast  at  the  election.  A  fortunate 
provision  that  the  election  may  be  either  general  or  special 
allows  this  latter  expensive  method  in  case  of  real  necessity. 
In  1908  Maine  adopted  a  good  system  of  statutory  initia- 
tive and  referendum,  requiring  a  two-thirds  vote  for  the 
declaration  of  an  emergency,  and  introducing  the  require- 
ment of  a  stated  number  of  signatures  for  petitions,  instead 
of  a  per  cent  of  the  voters.  In  a  rapidly  growing  state  this 
fixed  number  would  presumably  need  to  be  raised  at  every 
decennial  census.  Missouri  also  in  1908  adopted  a  sys- 
tem of  direct  (constitutional  and)  statutory  initiative  and 


220          AMERICAN  STATE   CONSTITUTIONS 

referendum;  requiring  newspaper  advertising  and  a  pre- 
scribed per  cent  of  signatures  in  each  of  at  least  two-thirds 
of  its  congressional  districts.  The  referendum  vote  is  a 
majority  of  those  voting  thereon.  A  numerously  signed 
petition  in  any  case  rightly  involves  much  trouble  and  ex- 
pense, but  excessive  additional  requirements  like  that  above 
involve  needless  trouble  and  extra  expense.  In  such  cases 
the  referendum,  like  a  governor's  veto,  is  a  possibility  to  be 
taken  into  account,  but  presumably  will  be  used  in  cases 
of  extreme  necessity  only.  An  attempt  to  weaken  this 
law,  by  amendment,  1914,  was  defeated. 

In  1910  Arkansas  and  Colorado  adopted  each  a  system 
of  direct  (constitutional  and)  statutory  initiative  and  refer- 
endum. It  permits  the  declaration  of  an  emergency,  which 
prevents  the  use  of  the  referendum,  and  publicity  is  secured 
in  Arkansas  through  advertising  in  the  newspapers.  The 
referendum  requires  a  majority  of  those  voting  thereon. 
The  year  1911  added  three  other  states  to  the  list,  though 
these  adopted  widely  varying  systems.  The  convention  of 
Arizona  inserted  into  the  constitution  a  direct  (constitu- 
tional and)  statutory  initiative  and  referendum.  The 
emergency  clause  is  to  be  declared  by  a  two-thirds  vote 
and  prevents  the  use  of  the  referendum.  A  majority  of 
the  votes  cast  thereon  decides  a  referendum,  and  for 
publication  purposes  the  publicity  pamphlet  was  authorized 
by  the  legislature.  New  Mexico's  convention  inserted  a 
referendum  provision  only,  so  restricted  as  to  be  practically 
useless.  Petitions  must  be  signed  by  ten  per  cent  of  the 
voters  (it  is  usually  five  per  cent)  in  each  of  at  least  three- 
fourths  of  the  counties.  A  majority  of  those  voting  thereon 
is  required  but  it  must  be  at  least  forty  per  cent  of  the 
vote  cast  at  the  (general)  election.  California  at  a  special 
election  added  to  the  constitution  (Article  IV,  Section  i) 


LIMITATIONS  ON  THE  LEGISLATURE        221 

a  lengthy  self-executing  set  of  provisions  securing  both  the 
direct  and  the  indirect  (constitutional  and)  statutory  ini- 
tiative, and  the  referendum.  The  referendum,  when  de- 
manded, suspends  the  law  (or  part  of  law)  pending  the 
vote.  An  emergency  may  be  declared  by  a  two-thirds 
vote  but  the  measure  still  remains  open  to  referendum.  A 
publicity  pamphlet  is  the  method  of  publication  and  a 
majority  of  those  voting  thereon  determines  the  issue. 

The  year  1912  introduced  four  other  amendments  into 
as  many  state  constitutions.  Amendments  for  the  initia- 
tive and  referendum  were  submitted  also  in  Wyoming  and 
Mississippi;  these  received  a  majority  of  those  voting 
thereon  but  not,  as  required,  a  majority  of  the  votes  cast 
at  the  election.  Nebraska  by  means  of  its  party  ballot 
method  of  voting  on  amendments,1  authorized  the  direct 
(constitutional  and)  statutory  initiative  and  the  referendum. 
Emergency  is  declared  by  a  majority  vote  but  does  not 
prevent  the  use  of  the  referendum.  The  requirements  are 
excessive,  demanding  a  large  per  cent  of  signatures,  two- 
fifths  of  the  counties,  and  at  least  thirty-five  per  cent  of 
the  vote  cast  at  the  general  election.  Idaho  adopted  an 
amendment  authorizing  a  statutory  initiative  and  referen- 
dum, the  latter  of  which  must  be  approved  at  a  general 
election  by  a  majority  of  the  vote  cast  for  governor.  The 
details  were  left  to  legislative  discretion  but  no  action  has 
yet  been  taken.  Washington  adopted  a  statutory  initia- 
tive and  referendum  amendment,  requiring  a  per  cent 
of  signatures,  but  not  to  exceed  a  number  fixed  in  the 
amendment.  Emergency  may  be  declared  by  a  majority 
and  this  prevents  the  use  of  the  referendum.  For  passage, 
a  majority  of  those  voting  thereon  is  required,  provided 

1  Whereby  a  party  may  declare  for  or  against  an  amendment  and  straight 
ticket  votes  count  accordingly. 


222          AMERICAN  STATE   CONSTITUTIONS 

it  is  at  least  one-third  of  the  vote  cast.  The  publicity 
pamphlet  was  chosen  by  the  legislature  as  the  method  of 
publication.  The  convention  of  Ohio  among  other  amend- 
ments submitted  one  which  provided  for  the  (direct  con- 
stitutional and  the)  indirect  statutory  initiative  and  the 
referendum.  The  emergency  clause,  when  accompanied 
by  a  statement  of  reasons  and  passed  by  a  two-thirds  vote, 
prevents  the  use  of  the  referendum.  A  petition  must  have 
a  given  per  cent  of  signatures  from  at  least  one-half  the 
counties.  The  amendment  included  a  publicity  pamphlet 
method  of  publication,  and  was  made  self-executing. 

In  1913  Michigan,  dissatisfied  with  the  provision  in  its 
new  constitution  respecting  the  constitutional  initiative, 
passed  a  broader  amendment  providing  for  (an  improved 
constitutional  and)  an  indirect  statutory  initiative  and  a 
referendum,  needing  the  endorsement  only  of  a  majority 
of  those  voting  thereon.  In  November,  1914,  five1  other 
states  voted  on  amendments  in  respect  to  the  initiative 
and  referendum,  but  in  one  only  (North  Dakota)  did  the 
amendment  pass.  This  requires  for  initiation  ten  per  cent, 
a  majority  of  the  counties,  and  provides  for  a  referendum 
through  the  secretary  of  state  in  case  the  legislature  fails 
to  submit  it.  There  is  the  usual  emergency  clause  and  the 
governor  is  expressly  forbidden  to  use  his  veto.  A  refer- 
endum may  demand  the  submission  of  items  of  bills  and 
referenda  are  decided  by  a  majority  of  votes  cast  thereon. 
The  requirements  for  the  constitutional  initiative  and  refer- 
endum are  so  severe  that  the  system  is  practically  worthless. 

In  ways  equally  effective,  though  not  so  spectacular,  the 
people  through  the  convention  have  placed  in  the  constitu- 
tions requirements  that  certain  kinds  of  general  laws  shall 

1  Minnesota,  Mississippi,  North  Dakota,  Texas,  Wisconsin.  In  Mis- 
sissippi the  matter  is  in  doubt  and  goes  to  the  courts  for  decision. 


LIMITATIONS  ON  THE  LEGISLATURE        223 

be  referred  to  the  electorate  for  final  approval  or  rejection. 
Space  will  not  allow  a  full  discussion  of  this  subject,  but  in 
brief  it  may  be  said  that  in  many  states,  in  addition  to  the 
general  referendum  now  contained  in  many  constitutions  as 
the  result  of  the  movement  for  the  initiative  and  referen- 
dum, referenda  must  be  ordered  in  the  case  of  general 
statutes  that  involve  an  increase  of  state  debt  above  a 
fixed  maximum,  an  increase  in  the  tax  rate  when  fixed  by 
constitution,  or  the  location  of  a  state  capital  or  important 
state  institution,  such  as  a  university  or  a  penitentiary. 
In  statutory  local  legislation  referendum  requirements  are 
entirely  too  numerous  to  specify.  Practically  all  the  states 
use  the  referendum  more  or  less  in  matters  affecting  coun- 
ties, towns  and  cities,  or  on  such  questions  as  the  licensing  of 
saloons  or  an  increase  in  local  debt  for  special  expenditures. 
Even  if  the  constitution  contains  no  specific  permission 
for  the  use  of  the  referendum  in  general  legislation,  yet 
presumably  an  assembly  may  pass  a  statute,  which  by  its 
terms  is  not  to  become  operative  unless  approved  by  a 
referendum  vote.  Massachusetts  in  1913,  to  make  sure 
of  this  principle,  passed  an  amendment  authorizing  its  legis- 
lature in  its  discretion  to  use  the  referendum  for  general  legis- 
lation. Michigan's  constitution  of  1908  (Article  IV.  Section 
38)  puts  it  in  this  form;  "Any  bill  passed  by  the  legisla- 
ture and  approved  by  the  governor,  except  appropriation 
bills,  may  be  referred  by  the  legislature  to  the  qualified 
electors ;  and  no  bill  so  referred  shall  become  a  law  unless 
approved  by  a  majority  of  the  electors  voting  thereon." 
Though  in  form  a  provision  like  this  seems  to  be  a  power 
and  not  a  limitation,  yet  it  involves  a  sort  of  necessity  for 
the  occasional  submission  of  referenda. 

Another  limitation,  furthermore,  is  involved  in  the  use 
of  the  initiative  and  referendum.     If  the  electorate  initiates 


224          AMERICAN  STATE   CONSTITUTIONS 

and  approves  a  statute  on  referendum,  obviously  it  would 
hardly  seem  fitting  that  this  kind  of  statute  should  be 
subject  to  legislative  change  like  ordinary  statutes.  Hence 
provisions  are  coming  into  constitutions  stating  that  in 
such  cases  changes  are  permissible  only  after  a  period  of 
two  (or  three)  years,  or  after  a  larger  fractional  vote  of 
both  houses  (two- thirds  or  three-fourths),  or  after  a  refer- 
endum favoring  the  change. 

SPECIAL  LEGISLATION 

Such  restrictions  have  largely  reduced  the  importance  of 
legislatures  in  the  making  of  general  statutes.  These 
bodies  find  some  consolation,  however,  if  only  they  are 
allowed  to  pass  at  pleasure  special,  local  or  private  legisla- 
tion. Through  such  measures  friends  are  won,  interests 
placated,  and  constituencies  made  secure.  An  attack  upon 
this  privilege  seems  to  add  insult  to  injury;  forbid  the 
privilege,  and  the  chief  delights  of  legislative  existence  pass 
away.  Yet  there  is  great  need  of  some  sort  of  restriction 
on  this  kind  of  legislation.  From  estimates  made,  it  is 
safe  to  say  that  the  legislatures  biennially  have  before  them 
for  consideration  from  fifty  thousand  to  sixty  thousand 
bills,  general  and  special.  About  a  third  of  these  finally 
become  law  and  of  those  passed  about  three-fifths  are 
special,  private,  or  local  in  kind.1  Under  such  conditions 
general  legislation  cannot  secure  the  attention  it  deserves. 
Really  capable  men,  wearied  by  numerous  demands  on 
their  time  and  patience  in  the  consideration  of  relatively 
unimportant  matters,  drop  out  of  our  legislatures  and 
yield  place  to  small  men,  big  with  the  sense  of  their  own 

1  At  a  recent  meeting  of  the  National  Bar  Association  it  was  asserted 
that  the  national  and  state  lawmaking  bodies,  during  the  five  years  from 
1909-1913  inclusive,  had  passed  62,014  statutes. 


LIMITATIONS  ON  THE  LEGISLATURE        225 

importance,  who  delight  in  special  legislation  as  a  means  to 
enable  them  to  hold  a  position  for  which  they  are  entirely 
unfit.  Add  to  this  the  waste  of  money  through  needlessly 
protracted  sessions,  and  undue  multiplication  of  law,  and 
it  is  easy  to  see  that  conventions  have  a  problem  on  their 
hands  in  devising  a  remedy  for  one  of  the  greatest  of  our 
political  evils. 

It  now  becomes  possible  to  ask  what  remedies  have  been 
devised  to  check  this  evil.  The  most  obvious  remedy  is  to 
forbid  special  legislation.  It  is  interesting  to  study  the 
old-fashioned  constitutions  of  New  England,  almost  void  of 
restrictions,  then  to  take  up  the  next  older  set,  and  see 
restrictions  creeping  in  one  by  one,  the  more  numerous 
as  you  go  westward,  where  democracy  is  more  vigorous, 
and  at  last  to  see  in  the  recent  constitutions  long  lists  of 
restrictions,  finally  as  many  as  thirty-five,  each  forbidding 
some  particular  kind  of  local,  special,  or  private  legislation. 
To  make  assurance  doubly  sure  the  new  Alabama  consti- 
tution carefully  defines  terms : 

A  general  law  within  the  meaning  of  this  article  is  a  law  which 
applies  to  the  whole  state ;  a  local  law  is  a  law  which  applies  to  any 
political  subdivision  or  subdivisions  of  the  state  less  than  the  whole ; 
a  special  or  private  law  within  the  meaning  of  this  article  is  one  which 
applies  to  an  individual,  association  or  corporation. 

These  restrictions  certainly  have  some  effect.  A  com- 
parison made  l  between  the  legislative  output  of  six  states 
whose  legislatures  were  practically  unrestricted,  and  six, 
quite  fully  restricted,  showed  that  special  legislation  was 
seventy  per  cent  of  the  whole  in  the  former,  and  but  twenty- 
eight  per  cent  in  the  latter  states. 

The  trouble  with  this  remedy  is  that  it  may  go  too  far. 
Our  governors  in  their  messages  already  complain  of  an 
^ur  State  Constitutions,  p.  52. 


226          AMERICAN   STATE   CONSTITUTIONS 

increase  of  statutes,  general  in  their  nature  but  really 
special  in  their  application.  Special  legislation  must  be 
had  at  times,  and  there  should  be  ways  of  getting  it  with- 
out subterfuge.  Let  there  be  restrictions  by  all  means, 
but  allow  some  discretion  on  occasions. 

The  device  of  a  special  committee  on  local  legislation, 
already  referred  to  as  authorized  in  Georgia,  Mississippi 
and  Virginia,  is  excellent  in  design  but  in  practice  seems 
not  to  work  well,  if  one  may  judge  from  the  amount  of 
special  legislation  still  issued  by  the  legislatures  of  those 
states.  Such  committees  should  be  impartial  and  judicial 
in  the  exercise  of  their  work,  like  similar  committees  of 
the  British  House  of  Commons,  where  the  handling  of 
special  legislation  is  a  fine  art. 

Another  device  found  in  several  constitutions  1  and  in 
the  statutes  of  some  others  (Vermont  for  example),  is  to 
require  that  no  local  or  special  bill  shall  be  passed,  unless 
notice  of  the  intention  to  apply  for  such  legislation  shall 
have  been  published  in  the  locality  at  least  thirty  (or 
sixty)  days  before  the  bill  is  introduced.  This  is  a  most 
excellent  plan  if  properly  performed.  If,  however,  the 
notice  is  published  once,  in  fine  type,  in  an  obscure  corner 
of  an  obscure  paper,  little  will  be  accomplished  by  the 
requirement. 

A  much  more  promising  remedy,  imitated  from  the 
excellent  English  system  of  supervision  over  local  govern- 
ment, and  now  partly  in  use  in  many  states,  under  legis- 
lative authority,  is  to  authorize  by  general  statute  the 
several  departments  of  administration  to  apply  the  prin- 
ciples of  such  statute  to  special  cases  as  they  arise.  For 
example,  the  auditor  may  settle  claims  for  tax  rebates,  the 

1  Arkansas,  Florida,  Georgia,  Louisiana,  Missouri,  North  Carolina,  Okla- 
homa, Pennsylvania,  Texas. 


LIMITATIONS  ON  THE  LEGISLATURE        227 

land  commissioner  many  points  in  titles,  the  secretary  of 
state  issue  charters,  and  the  courts,  like  the  federal  court 
of  claims,  pass  on  disputed  accounts.  We  have  now  in 
many  of  our  states  boards  of  equalization.  Such  a  board 
might  have  its  powers  enlarged  so  as  to  pass  on  very  many 
requests  from  localities  for  special  legislation.  The  Eng- 
lish Local  Government  Board,  which  performs  such  a 
service  for  counties,  towns,  and  cities,  is,  perhaps,  the 
most  successful  device  in  British  national  administration. 
This  movement  is  hard  to  follow  from  constitutions,  because 
the  statutory  power  of  legislatures  is  ordinarily  sufficient 
for  action,  but  there  is  a  strong  trend  in  this  direction 
throughout  the  country,  and,  if  supplemented  by  thorough 
executive  oversight,  and  civil  service  rules,  should  prove 
a  very  real  remedy  for  the  evils  of  special  legislation. 
That  at  least  is  the  conclusion  of  the  best  governed  of  the 
European  states  1  which  do  not  suffer,  as  the  United  States 
does,  from  such  a  perversion  of  lawmaking. 

There  are  however  other  movements  that  are  power- 
fully affecting  the  situation  by  placing  emphasis  on  the 
study  of  comparative  legislation  and  on  the  wise  drafting 
of  bills.  There  are,  for  instance,  organizations  like  the 
National  Civic  Federation,  the  American  Bar  Association 
and  the  Commissioners  on  Uniform  Laws;  these  work 
steadily  and  consistently  for  wiser  legislation  in  the  states, 
based  on  careful  studies  of  general  principles  and  practices. 
The  many  Legislative  Reference  Bureaus  now  existent  in 
most  of  the  states  as  separate  organizations  or  as  expansions 
of  state  library  activities,  are  exerting  a  definite  and  con- 
structive influence  on  lawmaking  through  expert  advice 
given  to  legislators.  Such  experts  aim  to  familiarize  them- 
selves with  the  laws  of  their  states,  the  judicial  decisions 

1  Great  Britain,  Germany,  France. 


228          AMERICAN  STATE   CONSTITUTIONS 

interpreting  these,  and  with  the  legislation  and  experience 
of  other  states  and  nations.  Springing  from  this  is  the 
movement  for  more  efficient  bill  drafting  through  the  em- 
ployment of  experts  and  "revisers  of  statutes/'  whose  duty 
it  is  to  keep  a  careful  oversight  over  the  statutes  of  the 
state  and  to  be  able  to  draft  necessary  statutes  in  a 
thoroughly  scientific  manner.1  The  need  for  this  expert 
service  is  plainly  obvious  since  it  is  claimed  that  almost 
one-half  of  the  (civil)  litigation  of  the  country  involves  the 
construction  of  statutes  and  constitutions  and  that  the 
greater  part  of  this  could  be  avoided  if  only  statutes  were 
skillfully  drawn. 

1  Many  states  have  expert  service  in  bill  drafting  through  their  reference 
bureaus  or  libraries,  but  special  officials  or  agencies  are  employed  in  New 
York,  Massachusetts,  Wisconsin,  Connecticut,  Colorado,  Vermont. 


CHAPTER  XVIII 

CONSTITUTIONAL  REGULATION  OF  IMPORTANT 
INTERESTS 

IT  is  said  that  Americans  are  prone  to  assert  dogmatically 
their  opinions  on  all  subjects  of  which  they  are  ignorant, 
and  to  be  diffident  in  matters  with  which  they  are  fully 
conversant.  The  point  of  this  saying  can  be  appreciated 
by  one  who  seeks  to  ascertain  how  conventions  regulate 
important  interests.  Most  of  these  interests  are  in  process 
of  ,rapid  development,  for,  through  the  multiplication  of 
machinery  and  wider  scientific  knowledge,  the  conditions 
of  life  change  with  wonderful  suddenness,  as  compared  with 
the  slow  changes  of  earlier  centuries.  Yet  conventions 
dogmatically  fix  in  the  fundamental  law  provisions  that 
must  be  largely  superseded  in  a  very  few  years.  The 
articles  on  corporations  for  instance,  placed  in  the  constitu- 
tions of  Virginia  and  Oklahoma,  both  of  which  can  be 
amended  only  with  great  difficulty,  and  Louisiana's  lengthy 
and  detailed  articles  on  its  judicial  organization,  no  matter 
how  excellent  these  may  all  be,  yet  will  surely  need  fre- 
quent amendment.  For  such  reasons  the  work  of  con- 
ventions in  respect  to  the  regulation  of  social  and  economic 
interests  is  the  least  satisfactory  of  all  their  labors. 

There  are  few  specialists,  if  any,  who  would  with  alacrity 
undertake  to  write  out  for  a  state  constitution  a  detailed 
system  of  taxation,  of  finance,  or  education ;  of  regulation 
for  corporations,  common  carriers,  or  banks ;  or  to  define 

229 


230          AMERICAN  STATE   CONSTITUTIONS 

a  policy  toward  labor,  or  state  ownership  of  monopolies,  or 
control  over  mining  interests.  All  such  matters  must  of 
course  receive  most  careful  attention  from  conventions, 
but  the  question  is  rather  whether  such  attention  should 
not  confine  itself  chiefly  to  the  formulation  of  general  prin- 
ciples, to  a  tentative  outline  for  a  system  of  regulation, 
leaving  details  to  the  legislature,  and  then  to  pay  much 
more  attention  to  methods  whereby  a  higher  grade  of 
officials  and  legislators  may  be  secured.  If,  for  illustration, 
the  quality  of  membership  in  the  legislatures  could  be 
raised;  if  the  numerous  departments,  commissions,  and 
boards  were  consolidated  and  unified,  the  salaries  of  heads 
trebled  and  civil  service  rules  adopted;  real  economy 
would  result,  and  efficiency  be  greatly  increased.  Conven- 
tions should  recognize  that  much  of  their  work  is  at  the 
best  transitory,  and  that  if  they  persist  in  preparing  lengthy 
and  detailed  constitutions,  the  method  of  amendment 
should  be  proportionately  simple.  An  unchangeable  con- 
stitution in  these  days  is  a  haven  of  safety  for  spoilsmen,  a 
handicap  to  progress,  and  an  insult  to  the  spirit  of  a  pro- 
gressive democracy. 

The  question  now  arises,  what  important  interests 
seem  on  the  whole  to  have  been  emphasized  in  the  existing 
constitutions  ?  The  following  paragraphs  will  present  these 
in  order. 

LOCAL  BODIES  POLITIC  1 

It  seems  plain  from  the  constitutions  that  the  town 
system  of  New  England  is  dying.  It  is  not  imitated  out- 
side of  that  section,  and  within  that  section  is  in  a  condition 
of  inefficiency  and  decrepitude.  The  real  unit  in  the 

1  For  careful  study  of  local  areas  in  states,  see,  Reed's  Territorial  Basis, 
in  Bibliography. 


REGULATION  OF  IMPORTANT  INTERESTS    231 

United  States  is  the  county,  which  in  thinly  settled  states 
is  cut  up  into  administrative  districts,  and  these  gradually 
become  townships  as  population  multiplies.  These  town- 
ships may  become  integral  parts  of  the  county  and  have  a 
large  share  of  local  autonomy  though  under  the  general 
supervision  of  the  county.  The  urban  center  has  two 
distinct  organizations,  the  village  and  the  large  city.  There 
is  first  the  village,  borough,  town  or  petty  city,  organized 
under  general  law  in  almost  all  the  states,  and  having  a 
small  compact  population  under  a  simple  form  of  govern- 
ment. Lastly  comes  the  incorporated  city  of  large  size, 
either  organized  by  special  charter,  or  in  classes  by  general 
law,  or  authorized  by  constitution  to  form  their  own 
charters,  subject  to  the  constitution  and  general  statutes 
of  the  states. 

When  Mr.  Bryce  in  his  " American  Commonwealth" 
charged  the  municipalities  of  the  United  States  with  cor- 
ruption and  inefficiency,1  there  were  even  then  many  signs 
of  change.  Since  that  time  no  field  of  political  activity  in 
the  states  has  received  so  much  attention.  Conventions 
fortunately  have  not  yet  ventured  to  insert  in  state  con- 
stitutions drafts  of  city  charters,  though  California's  con- 
stitution comes  dangerously  near  to  it  with  a  seven  thousand 
word  article  on  Counties,  Cities  and  Towns,  but  there 
has  been  a  steady  movement  looking  to  the  insertion  in 
the  constitution  of  provisions  securing  to  local  bodies 
politic  a  large  amount  of  local  autonomy.2 

Relatively,  state  constitutions  with  occasional  exceptions, 
do  not  devote  much  space  to  local  government.  In  some, 

1  In  Vol.  I.  chap.  LI,  ed.  1888. 

2  The  best  studies  of  recent  changes  can  be  made  from  the  constitution 
of  California,  Article  XI,  as  amended,  1914;    Michigan,  Article  VIII,  and 
Ohio,  amendments  forty  and  thirty-seven,  1912. 


232          AMERICAN  STATE   CONSTITUTIONS 

the  county  is  not  even  mentioned,  its  existence  being 
assumed ;  Oklahoma  by  contrast  names  and  bounds  in  the 
constitution  each  county.  Between  these  two  extremes 
there  are  naturally  wide  variations.  It  is  common  to  set 
a  minimum  area  and  population ;  to  regulate  changes  in 
county  seats  and  boundaries ;  to  provide  for  the  filling  by 
election  of  certain  designated  offices,  chiefly  administrative 
and  judicial ;  and  to  place  limitations  on  taxation  and  in- 
debtedness. Counties  are  often  given  the  option  of  divid- 
ing their  areas  into  townships.  It  is  generally  provided 
that  counties,  townships  and  villages  be  organized  under 
general  laws  and  legislatures  forbidden  to  pass  special 
legislation  in  such  matters.  California  by  amendment, 
1911,  permits  each  county  on  petition  to  elect  a  board  of 
freeholders  authorized  to  form  a  charter  for  the  county, 
which  will  go  into  effect  on  approval  of  the  citizens,  and  of 
the  next  legislature  approving  as  a  whole,  without  alteration. 
Four  states  1  provide  that  on  vote  a  municipality  may 
become  a  county,  or  else  that  county  and  city  organiza- 
tions and  areas  be  combined. 

Villages  if  incorporated  are  regularly  incorporated  under 
general  law,  but  the  recent  changes  in  Michigan  and  Ohio 2 
permit  villages  also  to  form  their  own  charters  on  petition. 
In  the  case  of  villages  and  cities  there  are  regularly  regula- 
tions in  respect  to  taxation,  indebtedness,  sinking  funds 
and  franchises,  the  newer  amendments  securing  to  munic- 
ipalities a  proper  control  over  their  franchises  and  public 
utilities.  This  is  part  of  the  larger  movement  aiming  to 
secure .  to  cities  a  reasonable  amount  of  home  rule  or 
local  autonomy.  This  is  accomplished  by  inserting  in  the 
constitutions  provisions  aiming  (i)  to  secure  a  proper 

1  California,  Michigan,  Minnesota,  Missouri. 

2  Articles  VIII  and  XVIII  respectively. 


REGULATION  OF  IMPORTANT  INTERESTS     233 

classification  of  cities1  and  general  charters  appropriate  to 
each  class ;  and  (2)  to  provide  that  municipalities  within 
certain  bounds  be  permitted  to  form  their  own  charters2  and 
to  adopt  these  on  referendum.  In  Oklahoma  the  governor 
also  must  approve,  before  a  charter  goes  into  effect.  The 
Ohio  municipal  statute  of  1913,  based  on  its  constitutional 
amendment,  allows  its  municipalities  three  types  of  general 
law  from  which  to  select,  based  respectively  on  the  com- 
mission system,  the  city  manager  plan,  and  the  so-called 
federal  plan  of  organization.  The  commission  form  of 
municipal  government3  is  responsible  also  for  a  rapid 
extension  among  the  states  in  local  affairs  of  the  initiative, 
referendum,  and  to  a  lesser  extent,  the  recall.  About  three- 
fourths  of  the  states  now  have  one  or  more  cities  under 
this  type  of  government,  so  that  municipal  betterment  has 

obviously  made  large  strides  in  the  last  twenty  years. 

• 

CORPORATIONS 

In  general  the  points  worthy  of  notice  in  constitutions 
respecting  corporations  of  all  sorts  are  as  follows:  First, 
the  word  is  regularly  defined  and  a  distinction  made  between 
corporations  organized  for  profit,  and  those  for  other 
purposes ;  these  last  may  be  exempted  from  taxation, 
if  religious,  educational,  or  eleemosynary  in  character. 
Second,  a  distinction  is  made  between  domestic  and  foreign 4 
corporations,  and  this  last  class  regulated  so  as  to  secure 

1  Thirteen  states  make  this  provision ;    Arkansas,  California,  Colorado, 
Indiana,  Kentucky,  Missouri,  New  York,  Ohio,  Oklahoma,  South  Dakota, 
Utah,  Washington,  Wyoming. 

2  California,  Colorado,  Michigan,  Minnesota,  Missouri,  Nebraska^  Ohio, 
Oklahoma,  Oregon,  Washington,  Wisconsin. 

3  April  first,  1913,  two  hundred  forty-five  cities  had  this  form  of  govern- 
ment, the  largest  being  Denver  and  New  Orleans.     Equity,  April,  1913, 
pp.  in  and  152. 

4  Those  not  chartered  by  the  state  itself. 


234          AMERICAN   STATE   CONSTITUTIONS 

investors  and  the  payment  of  suitable  fees  or  taxes.  In 
respect  to  corporations  organized  for  profit,  constitutions 
regulate  their  relations  to  the  state  and  seek  to  secure 
the  interests,  and  to  determine  the  liability  of  their  stock- 
holders. They  provide  that  corporations  be  chartered  by 
general  or  special  law,  that  their  charters  be  subject  to 
amendment  or  revocation,  that  those  already  organized 
must  file  acceptance  of  constitutional  provisions  if  they 
desire  to  have  the  benefit  of  future  legislation,  and  that  they 
be  subject  to  general  regulation.  This  regulation  may  be 
loose  and  allow  large  freedom,  or  may  be  strict  or  paternal 
in  character.  It  may  include  prohibitions  of  pools,  monop- 
olies, and  trusts,,  regulation  of  the  exercise  of  the  power  of 
eminent  domain,  aiming  to  secure  the  rights  of  those  whose 
property  is  taken ;  and  prohibitions  against  the  lending  of 
public  credit  by  a  state  or  locality  to  any  private  enterprise. 
In  addition  there  may  be  regulations  of  capital  stock  and  its 
issuance,  publicity  of  conditions  and  periodic  reports  to  a 
state  commission  having  powers  of  supervision  and  regu- 
lation. Such  state  commissions  are  found  in  about  one 
half  of  the  states  and  may  have  charge  of  corporations  in 
general,  or  may  be  organized  especially  for  the  control 
of  public  service  corporations  and  the  regulation  of  public 
utilities,  aiming  to  secure  to  the  state  a  just  assessment  of 
taxes  and  to  the  public  adequate  service  and  reasonable 
rates.  Some  states 1  forbid  corporations  to  hold  real  estate 
out  of  use  after  a  fixed  period  of  years  (five  to  ten).  Illus- 
trations of  the  above  provisions  may  be  found  in  most  of 
the  western  and  newer  southern  constitutions,  notably 
Kentucky,  Louisiana,  Alabama  and  Virginia.  The  articles 
in  the  constitutions  of  Alabama  and  South  Dakota  on  banks 
are  typical  of  the  usual  provisions  on  that  subject. 

1  California,  Louisiana,  Michigan,  Missouri,  for  example. 


REGULATION  OF  IMPORTANT  INTERESTS     235 

TAXATION  AND  FINANCE 

There  are  wide  differences  in  respect  to  these  matters 
in  the  constitutions,  but  a  tendency  in  certain  directions 
is  clear.  Details  must  be  sought  in  statutory  legislation. 
Taxes  must  be  uniform,  levied  and  collected  under  general 
laws,  and  for  public  purposes  only ;  but  there  is  a  tendency 
to  allow  a  classification  of  subjects  so  as  to  permit  of  excep- 
tions to  the  uniform  general  property  tax,  in  the  case  of 
property  paying  specific  taxes.  A  maximum  tax  rate  is  fixed, 
varying  with  the  valuation  of  the  state,  and  a  maximum  debt 
for  state  and  locality,  beyond  which  amount  the  referendum 
must  be  used.  The  maximum  may  be  fixed  by  a  per  cent 
of  the  assessed  valuation  instead  of  a  specific  amount. 
Some  authorize  an  income  tax,  others  an  inheritance  tax1 
and  still  others  franchise  taxes  and  a  tax  on  the  capital 
stock  of  corporations ;  a  very  few  states  forbid  a  poll  tax, 
California,  for  example,  by  amendment,  1914 ;  others 
authorize  it  for  educational  purposes  only.  These  special 
forms  of  taxation  illustrate  a  strong  tendency  to  seek  for  the 
state  sources  of  income  apart  from  those  used  by  localities. 
State  and  municipal  bonds  are  regularly  exempted  from 
taxation ;  also  personal  property  up  to  a  stated  amount, 
or  the  small  properties  of  widows  or  disabled  persons,  or 
property  used  for  religious  and  philanthropic  purposes. 
Provision  may  be  made  allowing  to  new  industries  exemp- 
tion for  a  term  of  years  (Mississippi  for  example),  or  there 
may  be  a  contrary  provision  forbidding  such  exemption.2 

1  Nine  states  only  do  not  yet  use  this  form  of  tax ;    Alabama,  Florida, 
Georgia,  Indiana,  Mississippi,  New  Mexico,  Nevada,  Rhode  Island,  South 
Carolina. 

2  There  is  a  slight  tendency  to  exempt  mortgages  from  taxation  (Idaho, 
Louisiana,  Utah,  Washington).     Louisiana  provides  exemption  for  "loans 
made  upon  the  security  of  mortgages  granted  upon  real  estate  situated  in  this 
state,  as  well  as  the  mortgages  granted  to  secure  said  loans,  etc."  Article  230. 


236          AMERICAN  STATE   CONSTITUTIONS 

Georgia  lengthily  defines  the  state's  sovereign  right  in 
taxation. 

The  system  of  assessment  is  justly  receiving  more  atten- 
tion than  formerly,  but  is  a  troublesome  question  and  much 
is  properly  left  to  the  discretion  of  legislatures.  The  chief 
provisions  are,  state  and  county  boards  of  equalization, 
and  in  a  few  states  (Louisiana  for  example)  special  boards 
for  the  assessment  of  franchise  corporations. 

In  finance  careful  provisions  in  respect  to  bonded  in- 
debtedness and  sinking  funds  are  characteristic  features. 
The  safe  investment  of  funds  is  a  vexed  question.  Two 
states  at  least1  allow  investment  of  school  funds  in  land 
mortgages.  Prohibitions  are  common  against  the  receiving 
by  treasurers  of  profits  from  the  loan  of  funds  in  their  hands. 
Our  states  are  mostly  in  excellent  financial  condition  and 
this  is  largely  due,  in  the  case  of  the  newer  states  at  least, 
to  the  wise  pay-as-you-go  policy  enjoined  by  constitutions. 
Wyoming  (Article  XVI.  7)  provided  for  a  state  wide  system 
of  uniform  accounts,  which  has  proved  very  useful  and  has 
been  imitated  by  other  states  (Ohio,  Indiana,  for  example). 
Attention  has  already  been  called  to  the  governor's  control 
over  finance.  No  state  yet  has  a  really  good  budget 
system2  but  there  are  signs  of  promise.  Virginia  in  its 
constitution  tries  an  interesting  experiment  in  providing 
for  a  standing  auditing  committee  made  up  of  five  members 
of  the  general  assembly.  This  committee  is  to  have  powers 
of  inspection  over  all  officers  who  handle  state  funds,  may 
sit  after  adjournment,  and  reports  to  the  governor. 

Provisions  in  regard  to  state  ownership  of  franchises  or 

1  Idaho  and  South  Dakota.     Missouri  allows  county  school  funds  to  be 
so  invested.     Washington  by  amendment  forbids  loans  of  school  funds  to 
private  persons  or  corporations. 

2  See,  "  Columbia  Univ.  Series  "  vol.  25,  The  Budget  in  the  American 
Commonwealth,  by  E.  E.  Agger. 


REGULATION  OF  IMPORTANT  INTERESTS     237 

natural  monopolies  are  not  common.  New  York  provides 
that  its  famous  canal  system  shall  forever  remain  the  prop- 
erty of  the  state,  and  in  another  section  makes  the  same 
provision  for  its  wild  forest  lands.  Utah  has  a  better 
worded  article  on  forestry.  Nebraska  reserves  ownership 
in  its  salt  springs.  The  western  mining  and  irrigating 
states  now  have  many  provisions  in  regard  to  the  uses  of 
the  waters  of  the  state,  Wyoming  and  North  Dakota  making 
the  waters  "  the  property  of  the  state."  Many  of  the  states 
bordering  on  the  sea  and  on  navigable  rivers  have  articles  on 
tide  lands  and  riparian  rights,  and  declare  their  policy 
in  regard  to  the  use  of  the  waters.1  North  Dakota  provides 
that  "the  coal  lands,  including  lignite,  of  the  state  shall 
never  be  sold,  but  may  be  leased,"  and  by  amendment  of 
1914  permits  the  state  ownership  and  control  of  grain  ele- 
vators. States  seem  not  yet  to  have  a  clear  policy  in  regard 
to  public  lands,  whether  to  sell  them  in  several ty  or  to 
retain  ownership  and  lease  the  lands.  Five  states  place 
restrictions  on  the  ownership  of  land  by  aliens,  and  Arizona 
limits  the  amount  of  land  that  may  be  held  by  an  indi- 
vidual or  corporation.  Wisconsin  and  South  Carolina 
both  declare  that  the  people  "  possess  the  ultimate  property 
in  and  to  all  lands  within  the  jurisdiction  of  the  state." 

MISCELLANEOUS 

The  articles  on  education  found  in  the  constitutions 
vary  from  the  simple  paragraph  of  early  constitutions 
to  lengthy  provisions  sometimes  several  pages  in  length. 
This,  however,  is  largely  due  to  the  necessity  of  arrang- 
ing for  the  disposition  of  the  school  lands  so  gener- 
ously voted  to  the  states  by  congress.  These  lands  are 

1  See  for  example,  Washington,  South  Carolina,  Louisiana,  Mississippi. 


238          AMERICAN   STATE   CONSTITUTIONS 

generally  placed  under  the  charge  of  a  land  commissioner 
or  board,  and  provisions  are  made  for  the  holding  or 
disposing  of  lands  and  the  investment  of  school  funds. 
Special  attention  is  paid  to  the  safety  and  proper  invest- 
ment of  these  funds,  and  several  states 1  provide  that 
losses  through  neglect  or  dishonesty  must  be  made  up 
from  other  funds.  About  two- thirds  of  the  constitutions 
now  forbid  school  funds  to  be  used  in  aid  of  sectarian 
or  denominational  schools.  Many  have  done  this  under 
instructions  in  enabling  acts,  and  others  of  their  own 
accord. 

Provision  is  generally  made  for  a  state  superintendent, 
a  board  of  education,  and  similar  officials  in  the  counties. 
Attention  also  is  given  to  the  organization  and  the  support 
of  the  higher  institutions  of  learning.  Localities  are 
permitted  to  add  to  the  school  funds  by  special  tax,  and 
cities  to  maintain  and  control  their  schools  apart  from  the 
county  system.  There  are  many  differences  in  respect  to 
the  length  of  the  term,  to  compulsory  features,  to  matters  of 
text  books  and  to  the  organization  of  separate  schools  in 
the  south  for  white  and  colored. 

The  growing  interest  in  labor  questions  begins  to  find 
expression  in  the  constitutions.  Bureaus  for  the  study  and 
preparation  of  labor  or  industrial  statistics  are  common. 
So  are  courts  or  boards  of  arbitration.  The  eight-hour 
day  for  all  public  work  is  fixed  in  eight  constitutions,2  and 
two  require  that  citizens  of  the  United  States  only  shall 
be  employed  on  public  works.  The  right  of  recovering 
damages  for  injury  is  safeguarded,  the  "  fellow-servant " 

1  For  example  Iowa,  Louisiana,  Nebraska,  North  Dakota,  South  Dakota, 
Utah,  Washington. 

2  California,  Idaho,  Montana,  Utah,  Wyoming,  Arizona,  New  Mexico, 
Oklahoma.     Colorado,  in  1902,  by  amendment  made  eight  hours  a  day's 
labor  in  mines. 


REGULATION  OF  IMPORTANT  INTERESTS     239 

doctrine  modified,1  the  safety  of  wages  guarded  for  those 
engaged  on  public  works,  and  contracts  declared  null  and 
void  which  exempt  employers  from  liability.  Wyoming 
by  amendment  in  1914  provided  for  a  Workingman's 
Compensation  State  Fund.  Convict  labor  is  regulated  so 
as  not  to  compete  with  other  forms  (New  York  for  instance), 
and  boys  under  sixteen  (or  fourteen)  are  forbidden  to  work 
in  mines.  The  three  new  states  all  have  this  provision. 
Wyoming  and  Oklahoma  forbid  the  employment  of  girls  or 
women  in  mines  at  all,  and  California  by  amendment,  1914, 
authorizes  the  legislature  to  provide  for  the  establishment 
of  a  minimum  wage  for  women  and  minors,  and  for  the 
comfort,  health,  safety  and  general  welfare  of  any  and  all 
employes.  Prohibitions  against  blacklists  and  Pinkerton 
detectives  are  among  the  curiosities  of  this  section. 

In  view  of  the  unfortunate  political  conditions  existing 
in  many  states  most  of  the  constitutions  contain  more  or 
less  elaborate  provisions  against  bribery,  and  corruption.2 
This  involves  much  taking  of  oaths ;  officials,  even  legis- 
lators, must  take  oath  that  they  have  not  attained  their 
election  by  improper  means ;  governors,  not  to  exert  im- 
proper influence  on  legislators.3  Free  passes  are  now  for- 
bidden by  constitution  in  at  least  sixteen  constitutions ;  log- 
rolling,4 lobbying,  betting  at  elections,  intimidations  of 
electors  by  employers,  and  sharing  in  contracts  while  in 
office,  are  all  prohibited  in  one  or  more  of  the  constitutions. 
Dueling,  though  well  nigh  obsolete,  is  forbidden  in  about 

1  There  are  a  few  provisions  in  regard  to  employers'  liability  and  work- 
men's compensation    (Arizona,  for  example),  but   these  acts  are  usually 
passed  under  general  legislative  powers. 

2  See  Alabama,  Delaware,  Kentucky  and  New  York  as  illustrations. 
Oklahoma  devotes  a  separate  article  (XV)  to  oaths,  bribery  and  free  passes. 

3  Ten  states  require  bribery  oaths. 

4  The  exchange  of  votes  by  legislators. 


240          AMERICAN  STATE   CONSTITUTIONS 

two-thirds  of  the  states,  and  in  most  is  a  disqualification 
for  office.  Three  states  require  the  duel  oath;  Texas 
combines  it  with  the  bribery  oath.  Mississippi  requires 
each  legislator  to  swear  to  read  the  constitution,  or  to  have  it 
read  to  him,  and  Oklahoma  declares  that  the  term  "white 
race"  is  to  include  all  persons  other  than  negroes. 

About  half  of  the  constitutions  now  secure  married  women 
in  their  right  to  separate  estates.  This  provision  is  often 
found  under  Homestead  Exemption,  for  which  in  some  form 
or  other  provisions  are  also  common.  Many  constitutions, 
especially  the  newer,  pay  much  incidental  attention  to 
matters  of  social  morals,  such  as  the  prohibition  of  lotteries,1 
regulation  of  intemperance  through  provisions  for  local 
option  or  prohibition,  and  authorization  of  penal  reforms.2 
In  1914  four  states  joined  the  prohibition  ranks  (Arizona, 
Colorado,  Oregon,  Washington),  making  a  total  of  fourteen. 
South  Carolina  prohibits  prize  fighting,  gambling  or  betting 
(to  officials)  and  has  a  unique  provision  against  lynching. 
There  is  a  rather  general  provision  for  institutions  of 
charity,  and  for  state  boards  of  charity  and  correction, 
either  with  powers  of  visitation  and  recommendation,  or  of 
control. 

Up  to  1898  four  states3  had  codified  their  written  and 
unwritten  law.4  Codifications  of  statutory  law  are,  of 
course,  much  more  common.  Six  states5  by  constitution 
authorize  their  preparation.  Michigan  orders  a  compila- 
tion only.  There  are  provisions  for  the  codification  of 

1  This  is  found  in  about  thirty-five  constitutions. 

2 Note  for  example;  Arizona,  XXII.  16;  New  Mexico,  XX.  15;  and 
Louisiana's  Article  118  on  Juvenile  Courts. 

3  Georgia,  California,  North  Dakota,  South  Dakota.     Note  also  Article 
on  Codification  and  Revision  of  Statutes.     Am.  Pol.  Sc.  Review.     Nov. 
1914.  pp.  629-632. 

4  27  Am.  Law  Review,  552. 

6  Indiana,  Louisiana,  Missouri,  South  Carolina,  Texas,  Oklahoma. 


REGULATION  OF  IMPORTANT  INTERESTS     241 

procedure  in  four  states1  and  the  constitutions  of  Missis- 
sippi and  Kentucky  each  provided  for  a  commission  of  ex- 
pert lawyers  to  prepare  such  general  laws  as  were  necessary 
to  put  the  new  constitutions  into  effect. 

1  Indiana,  Louisiana,  Ohio,  South  Carolina. 


CHAPTER  XIX 
CONSTITUTIONS   OF   THE   NEW   ENGLAND    STATES 

IT  becomes  obvious  that  in  a  comparative  study  of  state 
constitutions,  the  set  in  force  in  New  England  should  be 
studied  separately,  because  of  the  numerous  peculiarities 
found  in  these  ancient  constitutions.  The  latest  of  these 
has  served  two  generations,  and  the  oldest  was  written  in 
the  midst  of  the  Revolution.1  Though  amended  from  time 
to  time,  they  have  been  amended  conservatively  and  still 
retain  many  features  long  since  outgrown  by  the  other 
states ;  with  all  their  amendments  they  rank  as  the  shortest 
of  our  state  constitutions,  averaging  about  eight  thousand 
words,  or  one-half  the  length  of  other  state  constitutions. 

Three  of  these  place  amendments  after  the  main  text 
and  thereby  compel  a  perplexing  tangle  of  cross-references 
and  obsolete  provisions.  New  Hampshire  incorporates  its 
amendments  into  the  constitution,  Vermont  did  so  in  1913, 

1  Massachusetts,  1780,  revised  through  convention  in  1820,  and  twenty- 
two  sets  of  amendments  added  since  that  time  up  to  1912,  forty-one  articles 
in  all.  New  Hampshire,  1784,  revised  in  1792,  and  amended  1851,  1876, 
1889,  1903,  1912.  Vermont,  1793,  and  twenty-six  articles  of  amendment 
added  through  board  of  censors  and  convention,  1828,  1836,  1850,  1870, 
and  two  additional  articles  added  1883  through  legislative  action  and  refer- 
endum. In  1913  seven  amendments  were  added,  all  amendments  incor- 
porated into  the  body  of  the  constitution,  and  the  entire  document  rearranged 
and  renumbered.  Connecticut,  1818,  and  thirty-five  amendments  added 
up  to  1913.  Maine,  1819,  up  to  1875  twenty-one  amendments  were  added 
and  in  that  year  were  incorporated  into  the  main  text.  Fourteen  amend- 
ments have  been  added  since  that  date  up  to  1912.  Rhode  Island,  1842, 
and  thirteen  sets  of  amendments,  sixteen  in  all,  dating  from  1854  to  1911. 

242 


THE  NEW  ENGLAND   STATES  243 

for  the  first  time  incorporating  all  of  its  amendments  into 
the  constitution,  and  Maine  did  likewise  in  1875,  but  adds 
later  amendments  as  supplements.  Three  different  methods 
are  used  to  designate  the  numbering  of  articles  and  sections. 
Three  of  the  constitutions  include  a  short  preamble,  New 
Hampshire  and  Vermont  omit  it  entirely,  but  Massachusetts 
has  one  long  enough  (two  hundred  and  sixty-three  words) 
to  atone  for  their  shortcomings.  Five  of  the  states  preface 
their  constitutions  with  a  Declaration  of  Rights,  varying 
from  twenty-one  to  thirty  sections  each,  but  New  Hamp- 
shire calls  it  a  Bill  of  Rights,  and  lengthens  it  to  thirty-eight 
sections.  The  religious  features  of  these  provisions  present 
marked  peculiarities  but  they  have  already  been  presented 
in  Chapter  X.  All  of  the  states  emphasize  vigorously  the 
town  as  the  basis  of  administration  and  government,  and 
pay  relatively  small  attention  to  the  county  or  the  city. 
The  county  in  Rhode  Island  is  a  mere  judicial  district,  but  it 
plays  an  increasingly  important  part  in  the  other  five  states. 
This  system  of  administrative  districts  is  in  marked  contrast 
to  that  of  the  other  states  in  the  Union,  where  the  county 
and  city  receive  special  attention,  and  where  the  town  exists, 
if  at  all,  in  the  form  of  a  township.  In  three  of  the  states ' 
there  are  incorporated  villages  or  boroughs,  and  in  all  the 
states  there  are  organized  districts  with  special  powers, 
for  such  purposes  as  fire,  water,  highways  etc.  These 
subdivisions,  however,  are  relatively  unimportant.1 

The  six  constitutions  formally  separate  the  three  depart- 
ments of  government  but  the  separation  is  not  made  in  fact. 
In  each  state  the  legislature  is  given  the  mass  of  power  and 
largely  controls  administration.  In  Maine  the  governor 
must  be  a  native-born  citizen  of  the  United  States.  Four  of 

1  See,  Village  Government  in  New  England,  by  Frank  G.  Bates.  Am. 
Pol.  Sc.  Review,  Vol.  VI.  pp.  367-385. 


244          AMERICAN  STATE   CONSTITUTIONS 

the  states  elect  lieutenant-governors.  In  Vermont,  Con- 
necticut, and  Rhode  Island  he  presides  over  the  senate ; 
in  Massachusetts  he  presides  over  the  council  in  the  absence 
of  the  governor.  The  senate  elects  its  own  presiding  officer 
in  Massachusetts,  Maine  and  New  Hampshire.  JThree 
states  use  the  old-fashioned  executive  council,  reducing 
thereby  the  governor's  powers  proportionately.  New 
Hampshire  has  a  council  of  five,  and  Massachusetts  of 
eight,  both  elected  from  districts ;  Maine  has  a  council  of 
seven  chosen  by  joint  ballot  of  the  legislature.  The  council 
as  a  rule  shares  with  the  governor  his  power  in  nomination, 
appointment,  and  pardon ;  in  New  Hampshire  and  Massa- 
chusetts it  shares  also  his  control  over  expenditure  through 
approval  or  disapproval  of  disbursements  from  the  treasury. 
Connecticut,  Rhode  Island  and  Vermont  provide  for  the 
popular  election  of  three  of  their  heads  of  administra- 
tion; Massachusetts  elects  four,  Maine  and  New  Hamp- 
shire vest  the  appointing  power  in  the  assembly.  In 
Massachusetts  the  treasurer  may  not  hold  office  for  a  longer 
period  than  five  years ;  in  Maine,  six  years.  The  term  of 
executive  and  administrative  officers  is  two  years  except  in 
Massachusetts,  where  elections  are  annual.  The  chief 
power  vested  in  the  governor  is  that  of  veto.,  aside  from 
slight  supervisory  powers,  and  the  usual  powers  in  nomina- 
\  tion,  appointment,  pardon,  and  war.1  Four  of  the  states 
allow  their  governors  five  days  for  consideration  of  bills, 
but  Connecticut  makes  it  three.  The  veto  may  be  over- 
ridden by  a  majority  of  each  house  in  Connecticut,  by  three- 
fifths  in  Rhode  Island,  but  a  two- thirds  vote  is  needed  in 
the  other  four  states.  If  the  bill  is  in  the  governor's  hands 
when  the  legislature  adjourns,  the  bill  is  thereby  defeated 

1  The  quaint  and  bombastic  phraseology  of  the  New  Hampshire  and 
Massachusetts  war  paragraphs  is  especially  noteworthy. 


THE  NEW  ENGLAND   STATES  245 

in  four  of  the  states,  but  is  considered  as  passed  in  Maine 
unless  returned  during  the  first  three  days  of  the  next 
session,  or  in  Rhode  Island,  unless  filed  with  objections 
within  ten  days  after  adjournment.  No  one  of  the  six 
constitutions  allows  him  to  veto  items  of  appropriation 
bills,  though  thirty-four  of  the  other  states  give  their 
governors  this  power. 

The  legislatures1  of  four  states  are  elected  and  meet\ 
biennially,  but  Rhode  Island  has  biennial  elections  and 
annual  sessions,  and  Massachusetts  has  annual  elections 
and  sessions.  All  the  sessions  begin  in  January,  but  Maine 
holds  its  state  election  in  September  and  the  others  in 
November.  There  are  no  constitutional  limitations  on 
the  length  of  the  session  in  four  of  the  states,  but  Rhode 
Island  provides  that  there  shall  be  payment  for  sixty  days 
service  only,  at  the  rate  of  five  dollars  per  day ;  and  Con- 
necticut provides  that  "the  General  Assembly  shall  adjourn 
sine  die  not  later  than  the  first  Wednesday  after  the  first 
Monday  in  June  following  its  organization."  Connecticut 
and  New  Hampshire  fix  on  a  definite  compensation  for 
the  term,  and  the  other  three  states  fix  the  amount  by 
statute.2  The  apportionment  of  the  membership  of  the 
several  legislatures  has  already  been  explained  in  Chapter 
XVI.  The  substance  of  this  is  that  Massachusetts  fairly 
apportions  representation  in  both  houses  on  the  basis  of 
population ;  Maine  and  New  Hampshire  practically  do  so, 

1  In  Connecticut,  Rhode  Island  and  Vermont,  this  body  is  the  general 
assembly ;   in  Maine,  the  legislature ;  -  and  in  New  Hampshire  and  Massa- 
chusetts the  general  court.     Massachusetts  calls  itself  a  Commonwealth, 
not  a  State.     The  legal  name  of  Rhode   Island  is  "The  State  of  Rhode 
Island  and  Providence  Plantations." 

2  Connecticut,  three  hundred  dollars ;    New  Hampshire,  two  hundred 
dollars,  and  forty-five  dollars  as  a  maximum  for  a  special  session ;   Maine, 
three  hundred  dollars  for  the  term;    Massachusetts  one  thousand  dollars, 
and  Vermont,  four  dollars  per  day. 


246          AMERICAN  STATE  CONSTITUTIONS 

but  make  some  discrimination  against  urban  centers  in 
favor  of  rural  communities.  Vermont  and  Connecticut 
fairly  apportion  the  senate  on  the  basis  of  population, 
but  in  the  house  grossly  discriminate  in  favor  of  rural 
towns;  and  Rhode  Island  discriminates  against  urban 
centers  in  both  houses  and  most  unjustly  so  in  the  case  of 
the  senate,  whose  apportionment  is  the  least  popular  in 
basis  of  all  houses  in  the  United  States. 

The  most  noticeable  feature  of  the  New  England  legisla- 
tures is  the  slight  restriction  placed  on  their  enormous 
1  powers.  Aside  from  the  veto  there  are  almost  no  regula- 
\  tions  of  procedure.  A  roll-call  for  a  yea  and  nay  vote  on 
measures  pending  in  the  legislature  may  be  had  at  the  de- 
mand of  one-fifth  the  membership  (Connecticut,  Maine, 
Rhode  Island) ;  or  of  one  member,  (New  Hampshire) ;  or 
in  Vermont,  five  members  in  the  house  or  one  in  the 
senate ;  Massachusetts  has  no  provision  in  its  constitution. 
There  are  barely  any  restrictions  on  special,  local,  or 
private  legislation ; 1  a  few  restrictions  only  on  their  finance 
v  powers,2  and  some  general  regulation  of  education  and 
of  the  militia.  Little  or  nothing  is  said  in  regard  to 
such  important  matters  as  administrative  organization 
and  regulation,  local  and  municipal  government,3  and  eco- 
nomic and  corporate  interests  generally.  Maine's  prohibi- 
tion amendment  of  1884  is  the  only  prominent  regulation  of 

1  Maine  requires  the  legislature  to  provide  by  general  law,  as  far  as  prac- 
ticable, for  all  matters  usually  appertaining  to  special  or  private  legislation. 
Vermont,  by  amendment  of  1913,  forbids  hereafter  special  charters  of  in- 
corporation. 

2  Rhode  Island  and  Maine  fix  a  maximum  for  state  debt ;   in  the  former 
state  a  referendum  may  authorize  a  special  debt.     Revenue  bills  may  arise 
in  either  house  in  Connecticut  and  Rhode  Island,  but  in  the  house  of  rep- 
resentatives in  the  other  four  states.     New  Hampshire  by  amendment  (1903) 
authorized  a  franchise  and  an  inheritance  tax. 

3  Massachusetts  has  a  unique  provision  that  all  by-laws  made  by  mu- 
nicipalities shall  be  subject  at  all  times  to  be  annulled  by  the  General  Court. 


THE  NEW  ENGLAND   STATES  247 

social  interests.  Maine,  furthermore,  has,  curiously  enough, 
yielded  to  the  radicalism  of  the  west  sufficiently  to  insert 
into  its  constitution,  by  amendment,  1908,  a  provision  for 
the  statutory  initiative  and  referendum,  on  demand  of  a 
fixed  number  of  voters.  The  voters  already  have  made 
good  use  of  their  power  by  placing  on  the  statute  books  a 
direct  primary  law,  against  the  wish  of  the  legislature. 
Naturally  this  absence  of  restriction  and  regulation  gives 
to  the  legislatures  unusually  large  discretionary  powers  in 
all  forms  of  legislation. 

Suffrage  qualifications  likewise  present  some  peculiar 
features  and  variations.  In  all  the  states  voters  must  be 
citizens  of  the  United  States.  In  Maine  a  residence  in  the 
state  of  three  months  only  is  required ;  in  New  Hampshire 
he  must  be  an  inhabitant  of  a  town ;  Rhode  Island  requires 
a  two  years'  residence,  except  in  the  case  of  owners  of  real 
estate,  for  whom  one  year  is  sufficient.  The  other  three 
states  make  the  requirement  one  year.  Four  of  the  states 
have  an  educational  requirement ;  in  Connecticut  the  voter 
must  be  able  to  read  English;  in  Massachusetts,  Maine, 
and  New  Hampshire,  he  must  be  able  to  read  English  and 
write  his  name.  Rhode  Island  has  a  requirement  of  a  tax 
paid  on  property  assessed  at  a  value  of  at  least  one  hundred 
and  thirty-four  dollars,1  for  suffrage  in  the  election  of  mem- 
bers of  city  councils,  or  for  those  who  participate  in  financial 
town  meetings,  or  for  taxing  referenda  of  towns  or  cities. 
The  chief  restriction  on  suffrage  naturally  is  in  those  three 
states  that  by  discrimination  against  urban  centers  thereby 
virtually  throw  the  political  control  of  the  states  into  the 
hands  of  an  easily  manipulated  rural  oligarchy. 

The  judicial  provisions  of  these  six  constitutions  also 
present  curious  features.  In  general  it  may  be  said  that  the 

1  The  old  forty  shilling  franchise. 


248          AMERICAN   STATE   CONSTITUTIONS 

legislatures  have,  unlike  those  of  other  states,  very  large 
powers  in  denning  the  organization  and  powers  of  the  several 
grades  of  courts.  In  Massachusetts,  Maine  and  New 
Hampshire,  the  higher  judges  are  appointed  by  governor  and 
council,  in  Vermont  and  Rhode  Island  by  the  assembly, 
and  in  Connecticut  by  the  assembly  on  nomination  of  the 
governor.  The  tenure  of  the  justices  of  the  supreme  court 
is  two  years  in  Vermont,  seven  years  in  Maine,  eight  years  in 
Connecticut,  and  during  good  behavior  in  the  other  three 
states.  A  seventy-year  age  limit  is  fixed  in  the  constitu- 
tions of  Connecticut  and  New  Hampshire.  In  Rhode 
Island,  on  request  of  the  governor  or  either  house,  the 
supreme  court  must  give  opinions  on  important  questions 
of  law.  In  Massachusetts  and  New  Hampshire,  in  addi- 
tion to  the  two  houses,  the  governor  and  council,  and  in 
Maine  the  governor  or  council,  have  the  same  privilege, 
and  the  phrase  "and  on  solemn  occasions"  is  added  to  the 
conditions  under  which  advice  may  be  demanded.  Among 
minor  judicial  officers  it  may  be  noted  that  Rhode  Island 
alone  of  all  the  states  in  the  Union  elects  its  sheriffs  through 
the  assembly  instead  of  by  popular  vote.  The  other  New 
England  constitutions  expressly  require  that  they  be  elected 
by  the  people. 

AMENDMENT  AND  REVISION 

The  amending  articles  of  New  England  constitutions  con- 
tain several  marked  peculiarities.  Vermont,  Connecticut, 
Rhode  Island,  and  Massachusetts,  make  no  mention  what- 
soever of  the  constitutional  convention,  and  must  convoke 
it,  if  at  all,  under  general  legislative  powers  inherent  in 
their  state  sovereignty.  New  Hampshire  uses  a  conven- 
tion for  purposes  of  amendment,  the  power  of  amendment 
not  being  vested  in  the  legislature.  By  constitution  the 
several  towns  of  the  state  every  seven  years  vote  on  the 


THE  NEW  ENGLAND   STATES  249 

question  whether  or  not  a  convention  shall  be  called.  If 
an  affirmative  vote  is  cast  the  membership  is  made  up  on 
the  basis  of  the  house  of  representatives,  and  the  results 
of  the  labors  of  this  extraordinarily  large  convention  must 
be  submitted  as  separate  amendments  to  referendum  vote 
and  must  be  approved  by  a  majority  of  two- thirds.  These 
restrictions  are  so  severe  that  few  amendments  have  been 
or  can  be  made  to  the  constitution.  Maine  authorizes 
its  legislature  to  convoke,  without  a  referendum,  a  conven- 
tion by  a  two-thirds  vote  of  each  house,  but  this  power, 
given  by  amendment  in  1875,  has  not  yet  been  exercised. 
Amendments  may  be  initiated  by  legislature  through  a 
two-thirds  vote  of  each  house,  and  when  submitted  to 
referendum  vote,  must  be  approved  by  a  majority  of  those 
voting  thereon,  voting  at  a  special  election  in  the  September 
following  the  submission  of  the  amendments. 

New  England  has  been  rather  partial  to  the  use  of  con- 
stitutional commissions  instead  of  conventions,  and  three 
states  have  made  experiments  of  this  sort.  In  1875  the 
legislature  of  Maine  authorized  the  governor  to  appoint 
a  commission  of  ten  persons  to  report  to  the  legislature  such 
amendments  as  seemed  necessary.  Nine  of  the  seventeen 
amendments  submitted  by  this  commission  were  approved 
by  the  legislature,  referred  to  the  people,  and  adopted. 

The  legislature  of  Rhode  Island  in  1897  tried  the  com- 
mission plan  by  authorizing  the  governor  to  appoint  a 
body  of  fifteen  persons  to  report  to  the  legislature  a  revision 
of  the  constitution.  The  commission  was  seriously  handi- 
capped by  the  knowledge  that  its  work  must  satisfy  the 
demands  of  two  successive  legislatures.  It  succeeded  in 
this  but  failed  to  satisfy  the  people,  who  voted  down  the 
revision  in  November,  1898.  This  result  was  far  from  sat- 
isfactory to  the  party  in  power,  which  had  the  revision 


248          AMERICAN  STATE   CONSTITUTIONS 

legislatures  have,  unlike  those  of  other  states,  very  large 
powers  in  denning  the  organization  and  powers  of  the  several 
grades  of  courts.  In  Massachusetts,  Maine  and  New 
Hampshire,  the  higher  judges  are  appointed  by  governor  and 
council,  in  Vermont  and  Rhode  Island  by  the  assembly, 
and  in  Connecticut  by  the  assembly  on  nomination  of  the 
governor.  The  tenure  of  the  justices  of  the  supreme  court 
is  two  years  in  Vermont,  seven  years  in  Maine,  eight  years  in 
Connecticut,  and  during  good  behavior  in  the  other  three 
states.  A  seventy-year  age  limit  is  fixed  in  the  constitu- 
tions of  Connecticut  and  New  Hampshire.  In  Rhode 
Island,  on  request  of  the  governor  or  either  house,  the 
supreme  court  must  give  opinions  on  important  questions 
of  law.  In  Massachusetts  and  New  Hampshire,  in  addi- 
tion to  the  two  houses,  the  governor  and  council,  and  in 
Maine  the  governor  or  council,  have  the  same  privilege, 
and  the  phrase  "and  on  solemn  occasions"  is  added  to  the 
conditions  under  which  advice  may  be  demanded.  Among 
minor  judicial  officers  it  may  be  noted  that  Rhode  Island 
alone  of  all  the  states  in  the  Union  elects  its  sheriffs  through 
the  assembly  instead  of  by  popular  vote.  The  other  New 
England  constitutions  expressly  require  that  they  be  elected 
by  the  people. 

AMENDMENT  AND  REVISION 

The  amending  articles  of  New  England  constitutions  con- 
tain several  marked  peculiarities.  Vermont,  Connecticut, 
Rhode  Island,  and  Massachusetts,  make  no  mention  what- 
soever of  the  constitutional  convention,  and  must  convoke 
it,  if  at  all,  under  general  legislative  powers  inherent  in 
their  state  sovereignty.  New  Hampshire  uses  a  conven- 
tion for  purposes  of  amendment,  the  power  of  amendment 
not  being  vested  in  the  legislature.  By  constitution  the 
several  towns  of  the  state  every  seven  years  vote  on  the 


THE  NEW  ENGLAND   STATES  249 

question  whether  or  not  a  convention  shall  be  called.  If 
an  affirmative  vote  is  cast  the  membership  is  made  up  on 
the  basis  of  the  house  of  representatives,  and  the  results 
of  the  labors  of  this  extraordinarily  large  convention  must 
be  submitted  as  separate  amendments  to  referendum  vote 
and  must  be  approved  by  a  majority  of  two-thirds.  These 
restrictions  are  so  severe  that  few  amendments  have  been 
or  can  be  made  to  the  constitution.  Maine  authorizes 
its  legislature  to  convoke,  without  a  referendum,  a  conven- 
tion by  a  two-thirds  vote  of  each  house,  but  this  power, 
given  by  amendment  in  1875,  has  not  yet  been  exercised. 
Amendments  may  be  initiated  by  legislature  through  a 
two-thirds  vote  of  each  house,  and  when  submitted  to 
referendum  vote,  must  be  approved  by  a  majority  of  those 
voting  thereon,  voting  at  a  special  election  in  the  September 
following  the  submission  of  the  amendments. 

New  England  has  been  rather  partial  to  the  use  of  con- 
stitutional commissions  instead  of  conventions,  and  three 
states  have  made  experiments  of  this  sort.  In  1875  the 
legislature  of  Maine  authorized  the  governor  to  appoint 
a  commission  of  ten  persons  to  report  to  the  legislature  such 
amendments  as  seemed  necessary.  Nine  of  the  seventeen 
amendments  submitted  by  this  commission  were  approved 
by  the  legislature,  referred  to  the  people,  and  adopted. 

The  legislature  of  Rhode  Island  in  1897  tried  the  com- 
mission plan  by  authorizing  the  governor  to  appoint  a 
body  of  fifteen  persons  to  report  to  the  legislature  a  revision 
of  the  constitution.  The  commission  was  seriously  handi- 
capped by  the  knowledge  that  its  work  must  satisfy  the 
demands  of  two  successive  legislatures.  It  succeeded  in 
this  but  failed  to  satisfy  the  people,  who  voted  down  the 
revision  in  November,  1898.  This  result  was  far  from  sat- 
isfactory  to  the  party  in  power,  which  had  the  revision 


250          AMERICAN   STATE   CONSTITUTIONS 

repassed  with  a  few  verbal  changes  and  submitted  to  ref- 
erendum in  June,  1899.  It  was  again  rejected  by  a  larger 
adverse  vote  and  thus  ended  another  of  the  New  England 
experiments  of  revision  through  commissions.  In  1912 
still  another  commission  (nine  persons)  was  appointed 
to  recommend  amendments  to  the  constitution,  and  made 
its  report  to  the  assembly  of  1915.  No  action  has  yet 
been  taken  on  this  report. 

Vermont  in  1908  appointed  a  commission  of  five  to  rec- 
ommend to  the  legislature  such  amendments  as  might  seem 
necessary.  The  report  was  embodied  in  eight  proposals 
most  of  which  in  substance  were  approved  by  the  necessary 
legislatures  and  the  electorate.  All  of  these  reports  were 
strongly  conservative  and,  aside  from  the  Rhode  Island 
rejected  revision,  involved  no  matters  of  fundamental  im- 
portance. The  Rhode  Island  Report  of  1915,  however, 
does  make  some  excellent  recommendations ;  such  as  the 
reapportionment  of  the  senate,  the  abolition  of  the  property 
qualification,  the  item  veto,  the  biennial  session,  provisions 
for  a  convention  every  twenty  years,  and  for  a  simpler 
method  of  amending. 

Omitting  New  Hampshire  and  Maine,  the  four  remaining 
states  amend  through  the  action  of  two  assemblies  but  with 
curious  differences.  In  Vermont,  at  the  end  of  every  dec- 
ade, dating  from  1880,  the  senate  (which  represents 
population)  by  a  two-thirds  vote  may  submit  amendments 
to  the  house  (which  represents  the  towns) ;  if  this  approves 
by  a  majority  vote,  the  amendments  are  referred  to  the 
next  assembly,  a  majority  vote  of  each  house  must  then 
approve ;  this  is  followed  by  a  referendum,  and  amendments 
must  be  approved  by  a  majority  of  those  voting  thereon. 
Massachusetts  allows  amendments  at  any  time  but  requires 
a  majority  of  the  senate  and  two-thirds  of  the  house  of  the 


THE  NEW  ENGLAND  STATES  251 

initiating  general  court,  and  a  similar  majority  of  each  house 
of  the  next  general  court,  followed  by  a  referendum  vote, 
in  which  a  majority  of  those  voting  thereon,  approves. 
Rhode  Island  requires  the  action  of  two  assemblies,  a 
majority  of  each  house  approving  and  a  referendum ;  but 
requires  approval  by  popular  vote  to  be  by  a  three-fifths 
vote.  Connecticut  initiates  amendments  by  a  majority 
vote  of  the  house  only ; 1  these  are  referred  to  the  next 
assembly,  and  must  be  approved  by  a  two-thirds  vote  of 
each  house,  and  then  on  referendum  by  a  majority  of  the 
electors  present  at  the  town  meetings.  Connecticut, 
under  the  stress  of  urgent  demands  for  constitutional  re- 
form through  a  convention,  called  such  a  body  in  1901  under 
the  general  legislative  power  vested  in  its  assembly.  The 
dominant  political  interests  of  the  state,  however,  placed 
certain  limitations  on  the  convention's  power  of  revision, 
and  made  assurance  doubly  sure  by  making  up  the  member- 
ship of  the  convention  by  one  delegate  from  each  town, 
irrespective  of  population.  The  result  was  a  revision  un- 
satisfactory to  all  parties  concerned,  and  its  consequent 
rejection  in  1902  by  referendum  vote.  The  house  in  1905 
submitted  a  revised  constitution  as  an  amendment.  This 
made  no  material  change,  merely  incorporating  the  amend- 
ments into  the  body  of  the  constitution,  and  increasing  the 
pay  of  assemblymen  from  three  hundred  to  five  hundred 
dollars.  This  revision  was  acted  on  favorably  by  the 
assembly  of  1907,  but  was  defeated  at  the  polls. 

These  amending  articles  largely  explain  the  reason  why 
New  England  constitutions  are  old-fashioned.  The  legis- 
lative systems  of  Massachusetts  and  Maine  are  popular 
in  basis  and  allow  a  fair  expression  of  public  opinion.  A 
retention  of  old-fashioned  features  in  these  constitutions, 
1  This  body  represents  the  towns,  not  the  population. 


PART    III 

TREND    IN    STATE   CONSTITUTIONS 

CHAPTER  XX 
REVIEW  OF  DEVELOPMENT  SINCE   1776 

IN  the  preceding  chapters  has  been  traced  the  growth  of 
state  constitutions  from  the  somewhat  simple  and  crude 
type  of  revolutionary  days  to  the  complex  and  verbose 
patterns  of  this  century.  Although  these  modifications 
are  numerous  and  important,  yet  no  one  for  a  moment  sup- 
poses that  the  climax  of  change  has  been  reached.  The 
states  are  in  the  midst  of  an  era  of  governmental  reorganiza- 
tion and  already  the  signs  of  the  times  are  indicating  a  drift 
and  trend  towards  a  constitutional  system  at  once  demo- 
cratic in  aim  and  scientific  in  basis.  As  a  sort  of  summary 
of  these  tendencies,  will  be  set  forth  in  this  chapter  the 
several  lines  of  development  prominent  during  the  last 
hundred  and  forty  years ;  and  in  the  following  chapters  an 
attempt  will  be  made  to  formulate  suggestions  for  improve- 
ment in  state  constitutions,  working  towards  the  newer 
type  of  fundamental  law  now  in  process  of  development. 

A  state  constitution  aims  in  general  to  formulate  in 
written  law  the  essential  principles  of  the  prevailing  theories 
and  practices  in  respect  to  governmental  organization 
and  powers.  In  Cromwell's  day  the  notion  of  a  "law 
paramount"  over  statutes  promulgated  by  parliament 
had  been  evolved,  and  was  embodied  in  the  "Instrument 


REVIEW  OF  DEVELOPMENT  255 

of  Government,"  the  modem  world's  first  written  constitu- 
tion. The  Restoration,  however,  obscured  for  a  time  this 
notion  of  a  fundamental  law,  so  that  it  was  only  dimly 
comprehended  by  the  colonists  in  1776.  The  early  con- 
stitutions, therefore,  were  in  origin  and  purpose  very  like 
legislative  statutes,  and  were  chiefly  frameworks  of  govern- 
ment, mere  skeletons  of  organization,  leaving  by  implica- 
tion very  large  discretionary  powers  to  the  lawmaking  body 
as  the  representatives  of  the  " sovereign  people."  The 
practice  followed  in  separating  powers  was  not  so  much  in 
harmony  with  Montesquieu's  theory,  which  in  fact  has  never 
found  favor  in  the  states  except  in  a  formal  way,  but  was 
based  on  English  and  colonial  custom,  supplemented  by 
an  acquired  dread  of  executive  authority  and  a  determina- 
tion to  curb  it  in  the  impending  reorganization.  The  new" 
constitutions,  therefore,  specified  the  three  well  recognized 
divisions  of  government;  viz.,  the  legislative,  executive, 
and  judicial,  but  took  pains  to  render  the  last  two,  and 
especially  the  executive,  subordinate  to  the  legislative, 
following  the  teachings  of  John  Locke.  This  body,  there- 
fore, dominant  in  the  governmental  scheme,  made  up  in 
theory  of  "men  of  wisdom  and  virtue,"  and  having  large 
discretionary  powers,  naturally  had  a  prominent  place  in  the 
new  system.  It  however  has  not  been  able  to  retain  this 
position  of  prominence.  The  development  of  the  last  oneN 
hundred  and  forty  years  is  a  long  record  of  a  series  of 
steady  encroachments  on  the  powers  of  the  legislature, 
paralleling  historically  the  encroachment  of  the  House  of 
Commons  on  the  powers  of  the  King  and  his  House  of 
Lords,  so  that,  in  those  states  where  these  tendencies  are 
most  fully  developed,  the  question  is  seriously  debated 
whether  state  legislatures  have  any  useful  function  in 
government  that  could  not  be  performed  more  efficiently 


256          AMERICAN  STATE   CONSTITUTIONS 

by  a  simpler  organization  of  an  administrative  type,  or  by 
a  small  unicameral  lawmaking  body. 

This  process  of  change  is  concretely  illustrated  by  the 
steady  increase  in  the  length  of  constitutions,  an  increase 
that  apparently  has  even  yet  not  reached  its  maximum. 
It  is  obvious  that  every  addition  to  the  length  of  a  constitu- 
tion is  in  effect  a  restriction  on  the  discretionary  power  of 
the  legislature,  for  these  additions  in  general  include  de- 
tailed instructions  as  to  the  organization  and  powers  of  the 
various  departments  of  government  and  administration, 
lists  of  limitations  on  legislative  authority,  and  lengthy 
regulations  of  legislative  procedure. 

This  tendency  to  enlargement  is  not  without  justifica- 
tion. The  proper  solution  of  problems  arising  from  the 
complexity  of  modern  interests,  demands  more  wisdom  and 
knowledge  than  is  usually  found  in  legislatures,  which 
are  often  incompetent  and  sometimes  venal,  so  that  the 
democratic  demand  for  legislation  through  a  constitutional 
convention,  is  really  a  demand  for  legislators  of  a  high 
grade.  Conventions  in  general  are  eager  to  curb  legislatures 
and  to  minimize  their  capacity  to  do  mischief,  so  that  to 
them  are  left  the  mere  details  of  legislation,  with  a  minimum 
of  discretion  in  the  formulation  of  statutes.  Broadly  speak- 
ing therefore  the  really  fundamental  trend  of  change  has 
been  from  a  dominant  legislature  to  a  dominant  electorate, 
working  through  the  convention. 

If  this  notion  of  change  through  restrictions  on  legisla- 
tive authority  be  taken  as  a  guide  in  constitutional  growth, 
the  whole  process  may  be  considered  under  the  six  following 
heads,  the  sum  total  of  which  would  represent  broadly 
the  trend  of  change^n  state  constitutions  from  1776  to  1914. 
The  headings  selected,  it  may  be  said,  represent  a  logical 
arrangement,  not  the  order  of  historical  development. 


REVIEW  OF  DEVELOPMENT  257 

I.  LEGAL  SOVEREIGNTY 

In  every  state  there  is  some  person  or  organization  having 
authority  to  formulate  the  fundamental  law  binding  on  the 
several  departments  of  government.  Attention  has  already 
been  called  to  the  fact  that  the  earliest  constitutions  were 
made  by  revolutionary  conventions,  or  legislatures  that  for 
the  most  part  indifferently  passed  both  fundamental  and 
statute  law  and  by  the  same  procedure.  Soon,  under  the 
stimulus  of  the  experiences  of  Massachusetts,  there  de- 
veloped the  constitutional  convention,  a  body  of  represen- 
tatives chosen  for  the  express  purpose  of  formulating  a 
constitution  for  their  state.  Then  in  later  development 
came  for  convenience'  sake  the  distinction  that  particular 
and  separate  amendments  might  be  passed  by  the  legisla- 
ture, using  a  complicated  procedure ;  but  that  new  consti- 
tutions, or  revisions,  should  be  made  by  a  convention.  In 
either  case  the  older  theory  was  that  both  legislature  and 
convention  exactly  voiced  the  will  of  the  people  and  hence 
there  was  no  need  of  referendum.  But  with  growing  democ- 
racy there  came  a  demand  from  the  electorate  that  both 
amendments  and  new  or  revised  constitutions  should  be 
referred  for  approval  or  rejection.  In  logical  develop- 
ment there  came  a  further  demand  that  the  process  of 
amendment  be  simplified,  and  that  the  possibility  of  order- 
ing a  revision  be  made  definite  by  inserting  that  right  in 
the  constitution.  Finally,  within  the  last  twenty  years,  has\ 
arisen  the  demand  that  the  electorate  of  the  state  be  in  fact  ' 
the  legal  sovereign  by  specifying  its  constitutional  right 
to  revise  or  amend  the  constitution  at  pleasure  through  the, 
constitutional  initiative  and  referendum".  It  is  understood 
of  course  that  not  all  the  states  have  gone  through  this 
entire  process  of  change.  Some  few  still  retain  methods  of 


258          AMERICAN  STATE   CONSTITUTIONS 

amending  peculiar  to  the  eighteenth  century,  and  twelve 
only  have  so  far  adopted  the  constitutional  initiative  and 
referendum,  but  the  trend  seems  to  be  steadily  set  in  the 
direction  of  popular  control. 

In  conclusion  of  this  topic  it  may  be  said  that  few  seem 
to  realize  the  importance  of  the  constitutional  convention 
in  American  state  governments.  It  is  the  great  agency 
through  which  democracy  finds  expression.  In  its  latest 
form,  that  of  a  body  made  up  of  delegates  elected  from  dis- 
tricts of  equal  population,  it  is  one  of  the  greatest  of  our 
political  inventions.  Through  it  popular  rights  may  be 
secured  in  the  constitution,  legislative  tyranny  restrained, 
and  powerful  interests  subordinated  to  the  general  welfare. 
These  objects  have  not  as  yet  been  fully  attained,  but  the 
convention  is  the  agency  through  which  public  opinion 
can  express  itself,  as  it  becomes  enlightened  in  respect  to 
the  needs  of  the  times. 

II.  THE  EXECUTIVE 

In  the  revolutionary  constitutions  antagonism  to  kings 
took  the  form  of  a  minimization  of  executive  authority. 
The  governor's  chair  was  honorable  through  social  prestige 
and  men  of  dignity  eagerly  sought  it,  but  few  powers  were 
attached  to  the  office  and  its  holder  even  in  the  exercise  of 
these  was  under  the  check  of  his  executive  council  and  of 
the  legislature,  which  in  most  states  elected  him  to  office. 
This  weakness  in  executive  authority  is  still  characteristic 
of  the  states  as  a  whole,  but  in  some  respects  the  governor 
has  gained  power  at  the  expense  of  the  legislature.  He  is 
no  longer  handicapped  by  the  old  time  executive  council 
except  in  three  of  the  New  England  states,  but  on  the  other 
hand  he  has  not  become  the  real  head  of  an  administrative 
counci^  as  is  the  president  of  the  United  States.  Yet  his 


REVIEW  OF  DEVELOPMENT  259 

power  of  appointment  to  minor  offices  is  increasing,  though 
regularly  shared  with  the  senate,  and  his  longer  term  of  two 
or  four  years  strengthens  his  influence.  His  messages  and 
recommendations  to  his  legislature  have  greater  weight  than 
formerly,  because,  as  the  choice  of  the  electorate  and  the 
virtual  head  of  his  political  party,  his  wishes  can  no  longer 
be  slighted  nor  ignored.  When  the  national  constitution" 
was  formed,  two  states  only  allowed  their  governors  the 
veto  power ;  at  this  time  one  state  only  withholds  it  and 
most  allow  their  governors,  in  addition,  the  right  to  veto, 
the  items  of  appropriation  bills.  This  veto  power  of  the 
governor,  especially  when  strengthened  by  the  power  to 
veto  items  and  to  approve  or  disapprove  after  legislative 
adjournment,  has  greatly  enlarged  the  importance  of  the 
executive,  since  it  allows  him  to  conserve  public  interests 
against  an  inefficient  or  corrupt  legislature. 

III.  ADMINISTRATION 

Administration  is  naturally  part  of  the  executive  function, 
but  in  the  revolutionary  period  it  was  at  first  controlled 
and  in  part  carried  on  by  the  legislatures.  This  was  done 
through  committees,  temporary  at  first  and  then  made 
permanent.1  The  work  performed  by  these  was  gradually 
transferred  to  paid  officials,  who,  as  functions  became 
specialized,  were  organized,  for  the  purpose  of  carrying  on 
the  work  of  administration,  into  the  numerous  boards, 
commissions,  and  departments  of  government.  Most  of 
our  states  are  still  in  this  stage  of  development.  Every  new 
line  of  activity  results  in  the  formation  of  a  special  board 
or  department,  the  organization  and  powers  of  which  are 

1  See,  The  Origin  of  the  Standing  Committee  System  in  American 
Legislative  Bodies,  by  J.  Franklin  Jameson.  Annual  Report  Am.  Hist. 
Assn.  1893.  pp.  393-99- 


26o          AMERICAN  STATE   CONSTITUTIONS 

frequently  defined  in  the  constitution.  Provision  also  regu- 
larly is  made  for  the  election  by  popular  vote  of  the  heads 
of  the  chief  administrative  departments,  such  as  the  secre- 
taries of  state  and  of  the  treasury,  the  comptroller,  or  audi- 
tor, and  the  superintendent  of  education.  Their  term  of 
office  is  usually  the  same  as  the  governor's.  As  these 
numerous  boards  and  departments  really  perform  the  larger 
part  of  governmental  business,  one  would  suppose  that  the 
several  articles  and  provisions  of  the  constitution  in  re- 
spect to  administration  would  be  gathered  together  and 
placed  under  a  separate  heading  entitled,  Departments  of 

/Administration,  and  that  the  functions  of  these  depart- 
ments would  be  coordinated,  unified,  and  provisions  made 
for  thorough  supervision.  This  is  not  done,  so  that  the 

\  absence  of  such  centralization  is  perhaps  the  greatest  weak- 
ness in  state  administration.  Supervisory  control  over 
these  bodies  by  legislative  committees  tends  to  become 
merely  nominal,  with  the  inevitable  consequences  of  in- 
efficiency and  lack  of  economy.  There  is  however  a  ten- 
dency in  a  few  states  to  center  such  powers  in  the  executive, 
making  him  the  head  of  the  administration  as  in  the  national 
system.  This  is  done  by  bestowing  on  him  large  powers 
in  appointment  and  removal,  and  authority  to  demand  re- 
ports and  to  investigate  the  management  of  departments. 
The  several  commissions  of  late  years  appointed  for  the 
purpose  of  recommending  an  administrative  reorganization, 
are  excellent  illustrations  of  the  present  trend,  which  is 
seeking  for  efficient  and  economic  administrative  systems  in 
state  government.1 

1  See,  p.  165. 


REVIEW  OF  DEVELOPMENT  261 

IV.  THE  JUDICIARY  DEPARTMENT 

The  older  constitutions  disposed  of  this  department  in  a 
few  words.  Discretionary  power  was  conferred  on  the  legis- 
lature, and  judges,  appointed  by  governor  or  legislature, 
usually  held  a  life  tenure.  The  new  constitutions  com- 
pletely reverse  this  practice.  The  court,  in  the  United 
States,  does  not  simply  decide  cases,  it  interprets  finally 
the  constitution,  and  to  that  extent  is  a  political  factor. 
For  this  reason,  the  existence  of  complex  business  conditions 
and  the  rise  of  corporate  interests  necessitate  much  more 
attention  to  this  department  of  government,  if  popular  in- 
terests are  to  be  safeguarded.  The  newer  constitutions 
therefore  regularly  outline  the  grades  of  courts,  define; 
their  powers,  set  the  boundaries  for  judicial  districts,  and; 
regulate  the  number  and  tenure  of  the  judiciary.  Similar 
changes  are  made  in  the  older  constitutions  as  rapidly 
as  they  come  up  for  revision.  Three  of  the  original  states 
still  retain  a  life  tenure  for  their  highest  judges,  but  all 
others  fix  a  term  of  years  for  judges  of  the  supreme  court; 
the  term  varies  from  two  to  twenty-one  years.  Six  states 
only  retain  appointment  through  the  governor,  aided  by 
council  or  senate.  Four  choose  through  the  legislature, 
and  one  nominates  through  the  governor  and  elects  through 
the  assembly.  The  other  states  all  elect  their  judiciary 
and  show  no  tendency  in  the  other  direction.  The  rise  ol\ 
the  "recall  of  judges,"  and  the  Colorado  experiment  in 
authorizing  the  recall  of  judicial  decisions,  are  illustrations 
of  the  electorate's  determination  to  get  a  closer  grip  on 
the  judiciary  rather  than  to  return  to  the  older  methods  of 
legislative  supervision.  Four  of  the  New  England  states 
still  allow  the  governor  or  assembly  to  ask  the  supreme 
court  for  opinions  on  questions  of  law,1  South  Dakota  and 

1  Massachusetts,  Maine,  New  Hampshire,  Rhode  Island.    See,  p.  180. 


262          AMERICAN  STATE  CONSTITUTIONS 

Florida  allow  the  governor  this  privilege,  but  all  the  other 
states  with  greater  wisdom  reject  this  provision,  so  as  not 
to  compel  the  court  to  take  sides  on  questions  involving 
perhaps  a  political  issue.  There  is  a  marked  tendency  in 
the  constitutions  to  merge  law  and  equity  into  a  common 
procedure,  to  modify  the  jury,  and  to  define  libel.  These 
tendencies  unitedly  show  a  strong  determination  to  make 
the  judicial  system  responsible  directly  to  the  electorate. 

V.  THE  ELECTORATE  1 

By  the  provisions  of  the  early  constitutions,  the  voting 
franchise  was  held  by  a  small  per  cent  only  of  the  population, 
since  there  were  restrictions  based  largely  on  property 
qualifications  and  to  some  extent  on  religious  beliefs.  The 
incoming  of  democracy  swept  away  these  restrictions  from 
one  constitution  after  another,  so  that  at  present  Rhode 
Island  alone  retains  a  survival  of  the  property  qualification, 
in  the  election  of  members  of  city  councils  and  in  the 
membership  of  town  financial  meetings.  Male  suffrage 
based  on  citizenship,  therefore,  became  the  rule,  but  some 
states  enlarged  even  this  by  admitting  to  voting  privileges 
those  aliens  who  had  declared  their  intention  of  becoming 
citizens.  The  civil  war  added  to  the  electorate  the  en- 
franchised male  blacks  of  adult  age,  and  the  agitation  of 
over  fifty  years  for  women's  suffrage  is  resulting  in  the  addi- 
tion to  the  voting  lists  of  women  also,  so  far  in  eleven  of 
the  states. 

On  the  other  hand  the  last  sixty  years  have  brought  to 
the  front  a  steadily  growing  list  of  regulations  and  require- 
ments, such  as  systems  of  registration,  educational  quali- 
fications, or  an  educational  qualification  with  a  property 

1  See  article  by  author,  Trend  of  Recent  Constitutional  Changes,  Am. 
Pol.  Sc.  Review,  Vol.  VI.  pp.  53-60. 


REVIEW  OF  DEVELOPMENT  263 

qualification  as  an  alternative,  or  a  requirement  of  prepaid 
taxes,  poll  or  property ;  so  that  the  lists  of  registered  voters 
in  some  states  are  in  per  cent  no  larger  than  the  voting  lists 
of  the  revolutionary  period.  Such  fluctuations  in  the  per 
cent  of  voting  population,  varying  from  an  electorate  in- 
cluding less  than  five  per  cent  of  the  population  to  those  of 
women's  suffrage  states  where  approximately  half  the 
population  is  eligible  to  the  voting  lists,  indicates  wide 
variations  in  social  conditions  and  in  democratic  theory 
and  practice.  It  should  however  be  said  that  these  are  the 
extremes  of  variation ;  taking  the  population  as  a  whole, 
•  from  twenty  to  twenty-five  per  cent  of  it  can  be  found  on 
the  registration  lists  of  the  states  unitedly.  Furthermore 
the  fact  should  be  noted  that  the  old  time  requirements  of 
special  property  qualifications  for  office  holding  have 
almost  entirely  disappeared,  such  survivals  as  exist  are 
allied  with  property  qualifications  for  suffrage,  since  ob- 
viously an  office  holder  should  have  the  qualifications  of  a 
voter.1  There  are  still  a  few  religious  restrictions  on  office 
holding.2 

This  enlargement  of  the  membership  of  the  electorates 
of  the  states  finds  its  supplement  in  the  remarkable  growth 
of  their  powers.  When  Montesquieu  wrote  his  famous 
discussion  of  the  separation  of  powers  with  its  check  and 
balance  theory,  he  failed  to  see  the  possibilities  of  the  in- 
significant electorate  of  his  day  as  in  fact  a  fourth  depart- 
ment of  government,  destined  through  democracy  to 
balance  and  check  his  three  departments,  both  separately 
and  collectively.  In  reality  the  democratic  trend  of  the 
present  is  more  in  accordance  with  Rousseau's  theory,  - 

1  There  are  slight  exceptions ;    for  example,  women  not  having  suffrage 
rights,  may  yet  serve  on  civic  committees  and  commissions. 

2  See  p.  135. 


264          AMERICAN  STATE   CONSTITUTIONS 

that  the  electorate  (the  people)  should  retain  in  its  own  pos- 
session sovereign  lawmaking  powers,  and  should  keep  the 
several  other  departments  of  government  definitely  re- 
sponsible always  to  the  sovereign  people. 

This  trend  found  expression  from  the  very  beginning  of 
national  existence.  Attention  already  has  been  called  to 
the  steady  growth  of  popular  control  over  government  as 
a  whole,  through  its  power  over  the  fundamental  law  of  the 
state.  This  naturally  implies  an  increasing  control  over 
the  legislative,  executive  (and  administrative),  and  judicial 
departments  of  government.  This  is  shown  by  the  fact 
that  the  chief  officials  of  the  state  and  its  several  local  sub- 
divisions, the  lawmakers  of  all  grades,  and  judges,  supreme 
and  inferior,  are  now  regularly  elected  by  popular  vote 
and  in  some  states  may  be  recalled  by  the  same  process. 
Since  the  convention  determines  the  judicial  system  and 
its  powers,  and  the  electorate  chooses  judges  and  serves  on 
jury,  judicial  decisions  tend  to  be  "popular  "  in  their  nature. 
Certainly,  also,  in  those  states  having  effective  systems  of 
the  initiative  and  referendum,  real  lawmaking  authority 
has  passed  from  legislatures  to  the  electorates.  The  elec- 
torates, in  other  words,  by  their  constitutional  powers  in 
the  states,  are  balancing,  checking,  and  dominating  the 
three  historic  departments  of  government,  so  that  the  older 
theory  of  " separation  of  powers"  is  rapidly  falling  into  a 
condition  of  harmless  senility. 

In  revolutionary  days  the  electorates  of  the  states  were 
largely  influenced  in  their  decisions  by  the  personality  of 
powerful  leaders,  or  were  manipulated  to  some  extent  by 
cliques  of  self-seeking  politicians.  Political  parties  of  the 
modern  type,  with  their  superb  organizations,  were  then 
unknown.  These  slowly  developed  as  aids  to  popular 
expression  and  were  at  first  quite  responsible  to  popular 


REVIEW  OF  DEVELOPMENT  265 

demand.  Yet  as  " machine  politics"  became  dominant, 
there  rapidly  grew  a  demand  for  a  fuller  and  fairer  expres- 
sion of  the  popular  will.  In  modern  constitutions  this 
takes  the  form  of  provisions  in  respect  to  ballots,  primaries, 
corrupt  practices,  and  returning  boards.  Through  such 
devices  electorates  are  seeking  opportunities  to  determine 
nominations  and  elections  apart  from  the  dictation  of  party 
organizations,  and  are  endeavoring  to  evolve  systems  such 
that  parties  may  be  useful  agents  but  not  masters  of  the 
voters  they  in  theory  are  supposed  to  represent.  This 
aspect  of  constitutional  change  is  a  marked  feature  of  recent 
constitutions. 

VI.  THE  LEGISLATURE  OR  GENERAL  ASSEMBLY 

This  powerful  body  in  revolutionary  days  completely 
overshadowed  the  other  two  departments,  and  was  practi- 
cally the  repository  of  the  sovereign  powers  in  the  states. 
Though  the  theory  of  the  separation  of  powers  was  held, 
all  really  important  powers  were  in  fact  entrusted  to  the 
legislatures.  This  is  by  no  means  the  present  condition. 
Not  only  have  the  other  two  usual  departments  been  built 
up  and  strengthened  at  the  expense  of  the  assembly,  but 
the  three  other  departments  of  government  already  men- 
tioned have  developed  into  importance,  viz.,  the  adminis- 
tration, the  electorate,  and  that  agency,  which  in  every 
state  has  the  legal  right  to  formulate  the  fundamental  law, 
the  Legal  Sovereign.  These  six  departments  unitedly  may 
exercise  every  conceivable  power  included  within  the  term 
sovereignty. 

The  revolutionary  constitutions  differed  widely  in  respect 
'  to  the  organization  and  membership  of  their  legislatures. 
Very  noticeable,  however,  is  the  present  tendency  to  ap- 
proximate toward  a  common  type.     In  all  the  states  the 


266          AMERICAN   STATE   CONSTITUTIONS 

legislature  is  bicameral.  Forty-three  states  elect  the 
members  of  the  house  biennially ;  senators  have  a  four-year 
term  in  thirty-one  states.  A  biennial  session  is  required  in 
forty  states,  and  thirty-seven  fix  actually  or  practically  a 
time  limit  for  legislative  sessions ;  this  in  twenty-one  states 
is  fixed  at  sixty  days.  In  twenty  states  the  membership  of 
both  houses  is  made  up  of  representatives  from  districts  of 
equal  population.  In  nineteen  other  states  there  is  a  re- 
quirement that  a  locality,  either  county  or  town,  be  repre- 
sented in  one  or  both  houses.  In  these  states,  however,  the 
requirement  modifies  only  slightly  the  principle  of  popular 
representation,  and  the  districts  are  practically  of  equal 
population.  In  other  words  thirty-nine  of  the  states  make 
their  legislative  houses  popular  in  basis.  The  nine  other 
states  depart  from  this  principle  by  requiring  a  dispropor- 
tionate representation  for  their  rural  towns,  or  counties  of 
small  population.  The  worst  offenders  in  this  respect  are 
Delaware,  Maryland,  Vermont,  Connecticut  and  Rhode 
Island.1 

Under  the  national  constitution  the  powers  not  delegated 
to  the  federation  nor  prohibited  to  the  states  are  reserved 
to  the  states.  This  reserved  power  may  be  exercised  in 
each  state  by  its  legislature,  unless  the  local  constitution 
redelegates  parts  of  this  power  to  the  other  departments  of 
government,  and  places  restrictions  and  prohibitions  on 
legislative  use  of  the  remainder. 

One  would  think  that  since  our  legislators  usually  come 
from  districts  of  equal  population  they  would  by  constitu- 
tion be  entrusted  with  large  discretionary  powers  in  legis- 
lation. This,  however,  is  far  from  being  the  fact.  There  is 
a  steadily  increasing  tendency  to  restrict  in  every  possible 
way  the  enormous  powers  of  legislatures.  Every  provision 

1  See,  chap.  xvi. 


REVIEW  OF  DEVELOPMENT  267 

in  a  bill  of  rights  limits  by  so  much  legislative  initiative. 
The  increasing  powers  of  the  executive  and  the  rapidly  in- 
creasing powers  of  the  electorate  in  appointment,  adminis- 
tration, and  lawmaking  are  all  at  the  expense  of  the  as- 
sembly; the  growth  in  importance  of  the  constitutional 
convention  subordinates  proportionately  its  rival,  the 
legislature.  Every  article  in  the  constitution  that  fixes 
the  organization  and  powers  of  a  department  of  adminis- 
tration, or  division  of  government,  or  defines  a  policy 
in  regard  to  important  interests,  is  to  that  extent  a  restric- 
tion on  legislative  discretion.  Yet  in  the  newer  constitu- 
tions one  may  expect  to  find,  as  already  indicated,  lengthy 
articles  on  the  judicial  and  administrative  departments, 
and  moreover  much  regulation  of  taxation,  finance,  local 
government,  education,  elections  and  the  suffrage ;  land, 
mines,  corporate  interests  and  labor.  To  these  regulations 
should  be  added  long  lists  of  prohibitions  such  as  those 
against  special  or  local  legislation,  and  numerous  regula- 
tions of  procedure  in  respect  to  the  handling  of  bills.  Sub- 
tract all  these  limitations  on  legislative  powers  from  the 
totality,  and  the  question  naturally  arises  whether  it  is 
worth  while  to  retain  large  and  expensive1  legislatures  to 
exercise  their  small  residue  of  petty  powers.  For  it  should 
be  remembered  that  the  membership  of  the  state  legislatures 
is  unitedly  over  seven  thousand,  and  that  nearly  two 
thousand  of  these  are  found  in  the  seven 2  states  that  have 
assemblies  of  over  two  hundred  members.  A  convention 
meeting  periodically,  and  well  supervised  administrative 
departments  with  ordinance  powers,  might  perform  all 
legislative  functions  with  entire  satisfaction. 

1  In  respect  to  expense,  see,  p.  279. 

2  Illinois,  Georgia,  Pennsylvania,  Massachusetts,  Vermont,  Connecticut, 

New  Hampshire. 


268          AMERICAN  STATE  CONSTITUTIONS 

It  seems  plain  that  the  really  important  lawmaking  body 
at  the  present  time  is  the  convention.  Its  members  are  of  a 
higher  grade  and  turn  out  work  distinctly  superior  to  that  of 
legislatures,  which  are  really  bodies  having  chiefly  ordinance 
powers.  Whenever,  through  sudden  changes  in  conditions,  a 
legislature  unexpectedly  develops  large  discretionary  power 
in  statute-making,  the  next  convention  in  that  state  usually 
settles  the  principle  itself  and  thereby  adds  another  limita- 
tion to  legislative  initiative.  This  tendency  seems  to 
offer  every  inducement  to  our  legislators  to  belittle  its  op- 
portunities and  to  adjourn  as  speedily  as  possible.  This  is 
a  wide  departure  from  the  older  belief  about  legislatures, 
whose  members,  as  the  early  constitutions  of  Maryland 
and  Vermont  put  it,  should  be  persons  "most  wise,  sensible, 
and  discreet,"  and  "most  noted  for  wisdom  and  virtue." 
In  conclusion,  attention  may  well  be  called  to  the  practi- 

/  cal  disappearance  from  our  constitutions  of  some  old-time 
provisions.  Among  these  may  be  mentioned  the  annual 

\  election,  and  the  annual  session,  the  governor's  council, 
and  unequal  representation  of  the  people  in  lawmaking 
bodies ;  the  life  tenure  of  judges,  and  the  advisory  capacity 

I   of   the   supreme   court.     Religious   restrictions   on   office- 

)  holding,  and  the  property  qualification  for  suffrage,  with 
very  slight  exceptions,  have  gone ;  the  town  system  of  New 
England  is  dying  in  that  section  and  does  not  exist  outside 
of  it.  The  real  local  units  of  administration  now  are, 
(i)  the  rural  county  with  its  districts,  its  townships,  and  its 
villages,  and  (2)  the  incorporated  city.  These  local  bodies 
politic,  once  entirely  subordinated  to  the  legislature,  are 
now  rapidly  securing  for  themselves,  through  constitutional 
provisions,  rights  of  self-government  through  guaranties 
of  local  control  over  franchises  and  a  determinate  voice  in 
the  making  of  their  own  charters.  In  passing,  it  may  be 


REVIEW  OF   DEVELOPMENT  269 

said  that  the  initiative,  referendum,  and  recall  features 
are  in  more  vigorous  use  in  local  even  than  in  state  govern- 
ment.1 

If  general  tendencies  in  the  making  of  constitutions  may  \ 
be  condensed  into  a  sentence,  we  may  say  that  the  govern- 
mental powers  of  the  states  are  centering  into  their  elec- 
torates, which  voice  themselves  through  the  ballot  and  the 
constitutional  convention. 

1  See  Article,  Municipal  Initiative,  Referendum,  and  Recall  in  Practice, 
by  C.  F.  Taylor,  National  Municipal  Review,  October,  1914. 


CHAPTER  XXI 

THE  ELECTORATE,   LEGAL   SOVEREIGNTY    AND   THE 
LEGISLATURE 

THE  trend  of  change  indicated  in  the  previous  chapter 
suggests  an  interpretation  of  these  tendencies,  so  as  to  for- 
mulate suggestions  looking  towards  a  series  of  suitable  modi- 
fications in  existing  constitutions.  It  would  of  course  be 
feasible  to  work  out  from  the  figments  of  one's  imagina- 
tion an  ideal  constitution,  which  like  Plato's  " Republic" 
would  be  best  suited  for  a  Utopia  inhabited  by  perfect  citi- 
zens. Or  by  contrast  one  might  cull  from  the  constitu- 
tions of  foreign  states  those  features  that  would  likely 
blend  best  with  the  principles  of  American  democracy, 
and  then  attempt  to  synthesize  the  whole  into  a  model 
constitution. 

The  commonwealths  of  the  United  States,  however,  are 
somewhat  conservative  by  nature,  not  prone  to  experiment 
overmuch,  and  prefer  to  make  modifications  based  on 
American  experiences,  sanctioned  by  proofs  of  successful 
working  under  the  usual  conditions  of  political  existence  in 
this  country.  In  the  following  pages,  therefore,  under  the 
same  six  headings  used  in  the  previous  chapter,  will  be  in- 
dicated the  possibilities  of  improvement  in  existing  con- 
stitutions, basing  these  suggestions  in  the  main  on  definite 
tendencies  manifest  in  American  economic  and  political 
experiences. 

270 


THE   ELECTORATE  AND  LAW  271 

I.  THE  ELECTORATE 

It  seems  obvious  that  under  present  conditions  and  in 
the  long  run  the  principle  of  adult  or  equal  suffrage  will  pre- 
vail over  manhood  suffrage.  Yet  it  is  also  clear  that  a  large 
per  cent  of  women  are  adverse  to  the  acquirement  of  suffrage 
rights  and  would  therefore  be  likely  to  refrain  from  regis- 
tration and  voting,  thus  adding  to  the  already  large  fraction 
of  "  stay-at-home "  voters.  Furthermore,  there  is  the 
problem  of  the  negro  vote  in  the  south,  the  vote  of  natural- 
ized foreigners  in  northern  urban  centers,  and  generally  the 
problem  of  a  voting  population  made  up  in  part  of  illiterates, 
economic  "  ne'er-do- wells,"  and  citizens  of  all  classes  who 
are  ignorant  of  or  indifferent  to  the  duties  involved  in  the 
suffrage.  Yet  as  long  as  political  parties  are  on  a  keenly 
competitive  basis,  emphasizing  perhaps  loyalty  to  party 
above  the  public  weal,  such  masses  of  ignorant  and  indiffer- 
ent citizens  are  a  boon  to  politicians,  since  from  their  ranks 
can  be  called  out  to  party  support,  under  the  stimulus  of 
cajolery,  bribes,  or  parasitic  employment,  an  army  of 
voters  who  often  outcount  the  more  intelligent  and  patriotic 
part  of  the  body  of  citizens.  On  the  other  hand,  it  seems 
evident,  from  the  enormous  interest  shown  in  legislation  in 
respect  to  primaries,  ballots,  and  corrupt  practices,  that  the 
state  electorates  are  determined  to  compel  political  parties  to 
subordinate  partisan  politics  to  general  welfare ;  or  as  an 
alternative  to  insist  on  non-partisanship  in  state  and 
municipal  politics.  As  this  object  becomes  achieved,  it  will 
become  easier  and  more  possible  to  standardize  the  elec- 
torates of  the  several  states  by  emphasizing  uniform  prin- 
ciples in  law,  suited  to  the  usual  conditions  prevalent  in 
all  states.  These  for  example,  might  adopt  adult  suffrage 
as  a  fundamental,  but  should  insist  with  varying  degrees  of 


272          AMERICAN  STATE   CONSTITUTIONS 

emphasis  that  the  suffrage  is  not  so  much  a  right  as  a  privi- 
lege, the  enjoyment  of  which  is  dependent  on  the  fulfilment 
of  certain  requirements  and  qualifications  as  a  test  of  in- 
terest and  intelligence.  Among  such  tests  might  be  speci- 
fied; the  ability  to  read  and  write  English  with  some  ease,  a 
registration  in  person  during  a  period  ending  at  least  three 
months  before  a  general  election,  and  the  payment  by  each 
registering  voter  of  a  small  registration  fee,  such  as  the 
dollar  poll  tax  collected  in  many  states.1  The  necessity 
for  a  personal  application  and  payment  of  a  fee  would 
automatically  disfranchise  those  whose  interest  in  voting 
depends  on  the  excitement  of  a  campaign  or  a  bribe,  and 
would  place  on  the  voting  lists  those  who  had  at  least  suffi- 
cient education  to  enable  them  to  acquire  information 
from  the  printed  page,  and  sufficient  interest  in  voting  to 
register  before  campaigning  began  and  to  pay  a  fee  for 
the  privilege. 

If,  as  a  matter  of  policy,  personal  interest  and  intelligence 
were  rigidly  demanded  as  qualifications  for  the  suffrage, 
citizens  lacking  these  would  tend  to  feel  that  they  were 
lower  in  status  than  those  who  had  registered  as  voters, 
so  that  there  would  be  a  constant  incitement  in  their  own 
minds  inducing  them  to  meet  the  requirements,  so  as  to  have 
the  privilege  of  voting.  States  and  their  municipalities  also 
would  realize  more  fully  than  they  do  at  present  the  obliga- 
tions resting  on  them  to  reduce  illiteracy  to  its  minimum, 
and  to  develop  civic  interest  by  proper  instruction  in  such 
matters,  not  only  in  the  schools  but  more  especially  among 
immigrants  within  their  boundaries.  On  the  other  hand, 
under  this  system  women  who  preferred  not  to  vote  would 

1  Under  such  a  system  poll  taxes  preferably  should  be  abolished.  Corrupt 
practices  acts  would  of  course  see  to  it  that  registration  fees  were  not  paid 
from  party  funds. 


THE  ELECTORATE  AND  LAW  273 

simply  refrain  from  registering,  and  their  sisters  who  wished 
the  ballot  might  enjoy  that  privilege  by  registering  within 
the  stipulated  time  and  paying  their  fee.  By  emphasis  on 
some  such  requirements,  suffrage  would  cease  to  be  deemed 
an  inherent  right,  automatically  going  to  each  adult  citizen 
as  he  attained  his  majority,  but  rather  a  right  earned  by 
showing  an  intelligent  interest  in  civic  life,  yet  liable  to  be 
forfeited  by  neglect.  A  moderately  sized  voting  list  of 
interested  citizens  would  surely  prove  to  be  preferable  to 
an  unwieldy  mass  of  voters  having  among  its  membership 
a  dead  weight  of  inert  citizenship. 

The  powers  of  the  electorates  in  the  several  states  pre- 
sumably will  under  present  tendencies  increase  to  such  an 
extent,  that  in  fact  as  well  as  in  theory  each  electorate  will 
hold  in  its  hand  the  sovereign  power  of  its  state  by  con- 
trolling through  the  ballot  the  several  departments  of  gov- 
ernmental organization.  How  this  may  take  place  in  detail 
will  be  discussed  in  the  later  headings  of  this  and  the  suc- 
ceeding chapter.  It  is  evident  however  that  as  aids  to  the 
effective  use  of  the  ballot,  electional  systems  must  be  so 
ordered  as  to  permit  the  average  citizen  to  vote  intelligently 
and  to  express  his  real  will.  Hence  the  lengthy  " circle" 
ballot  so  dear  to  all  politicians  should  be  superseded  by  a 
" short  ballot"  on  the  " alphabetical "  plan.  Furthermore, 
the  state  must  publish  for  each  election  a  "voters'  guide," 
furnishing  information  not  simply  in  respect  to  projected 
legislative  referenda,  but  also  brief  statements  of  the 
records  and  qualifications  of  candidates.  These  "pub- 
licity pamphlets"  1  have  fully  justified  their  usefulness,  and 
might  well  become  part  of  a  series  of  state  publications 
supplying  information  to  voters  about  matters  of  health, 

1  The  best  pamphlets  of  this  nature  are  issued  by  Oregon,  California, 
Nebraska,  Washington,  Wisconsin  and  Arizona. 


274          AMERICAN  STATE   CONSTITUTIONS 

education,  employment,  economic  possibilities  and  proposed 
legislation.  These,  by  act  of  congress,  might  be  mailed 
either  free  of  postage  or  at  newspaper  rates.  Such  a  method 
of  publication  would  be  vastly  more  efficient  than  the 
present  usual  method  of  advertising  in  newspapers,  would 
involve  much  less  expense,  and  would  prove  to  be  a  great 
educational  agency  for  the  promotion  of  interest  in  matters 
of  civic  policy. 

II.  LEGAL  SOVEREIGNTY 

If  it  be  assumed  that  the  powers  of  legal  sovereignty 
will  in  most  of  the  states  soon  be  vested  in  the  electorate  by 
constitutional  provision,  this  body  to  some  extent  at  least 
will  delegate  the  making  of  fundamental  law  to  representa- 
tives, whether  in  constitutional  convention  or  legislature. 
This  can  safely  be  done  if  the  constitution  definitely  asserts 
the  right  of  the  electorate  to  initiate  amendments,  to  demand 
a  convention  for  revision  purposes,  and  to  have  referred  to  it 
all  amendments  and  revisions.  Popular  control  over  funda- 
mental law  through  the  use  of  the  direct  constitutional 
initiative  may  in  the  first  enthusiasm  of  reform  be  carried 
too  far,  as  in  some  states  at  present ;  but  as  a  permanent 
proposition  these  measures  are  likely  to  be  used  conserva- 
tively, as  a  sort  of  last  resort,  or  as  a  veto  check  on  venal  or 
ill-considered  legislation.  As  legislatures  become  more 
trustworthy,  and  make  use  of  legislative  reference  and  bill 
drafting  departments,  presumably  the  electorate  might 
better  initiate  the  fundamentals  of  their  propositions, 
stating  simply  the  essentials  of  the  desired  legislation,  and 
leaving  the  elaboration  of  the  details  to  the  legislature. 
Yet  as  a  safeguard  against  neglect,  provision  might  wisely 
be  made  authorizing  the  secretary  of  state  to  submit  a 
drafted  bill,  in  case  the  legislature  failed  to  take  action  on 
the  initiated  measure. 


ELECTORATE  AND   LAW  275 

As  for  amencrments  initiated  by  the  legislature,  the  states 
obviously  are  agreeing  that  the  procedure  for  these  should 
include  action  by  one  legislature  only,  by  a  two-thirds  vote, 
without  reference  to  the  governor,  but  with  a  reference  to  the 
electorate,  who  make  final  decision  by  a  majority  of  those 
voting  thereon.  Amendments  should  be  separated  on  the 
ballot,  but  restrictions  on  the  number  to  be  submitted  at 
any  one  time  are  of  doubtful  utility.  A  proper  interval  of 
several  years,  however,  might  well  be  required  between  the 
defeat  of  an  amendment  and  its  resubmission.  Preferably 
amendments  should  be  submitted  by  legislative  rather  than 
by  popular  initiative,  provided  that  the  legislature  really 
represents  the  will  of  the  electorate. 

The  constitutional  convention  may  rightly  be  considered 
as  the  best  type  of  lawmaking  body  yet  devised  in  the 
United  States.  As  a  body  especially  chosen  for  the  formu- 
lation of  fundamental  law,  as  the  voice  of  the  people  it 
represents,  and  as  the  collective  wisdom  of  the  state  seeking 
to  embody  principles  for  future  political  organization  and 
policy,  it  occupies  a  commanding  place  in  American  democ- 
racy. For  this  reason  the  convention  should  never  be  made 
supplementary  or  subordinate  to  the  legislature,  to  which  it 
is  superior  in  power  and  prestige.  Its  composition  there- 
fore should  be  different  from  that  in  the  legislature,  and 
should  be  determined  by  the  constitution,  not  by  the 
legislature,  since  this  body  might  be  inclined  to  gerry- 
mander districts  or  to  provide  a  membership  so  com- 
posed as  to  assure  no  reforms  of  material  consequence.1 
By  usual  practice  the  convention's  membership  is  elected 
from  districts  of  equal  census  population,  or  in  part 
by  general  ticket;  preferably  the  members  should  be 
elected  by  nonpartisan  methods  and  should  be  few,  not 

1  As  Connecticut  did  in  1901 ;   see,  p.  251. 


276          AMERICAN  STATE   CONSTITUTIONS 

many  in  number.1  Rarely  if  ever  should  the  legislature  be 
allowed  authority  to  place  limitations  on  the  powers  of  the 
convention,  or  to  determine  the  length  of  time  for  its  ses- 
sions, or  the  time  and  manner  of  referendum.  The  con- 
stitution should  contain  provisions  fixing  such  matters, 
so  that  the  convention  may  be  left  free  from  dictation  by 
the  existing  departments  of  government,  so  as  to  work  out 
in  its  discretion  what  may  seem  best  for  the  state,  subject 
only  to  a  compulsory  referendum  to  the  electorate. 

As  far  as  possible,  preliminary  information  should  be 
prepared  in  advance  of  the  assembling  of  the  convention,  so 
as  to  save  time  and  expense.  This  might  be  accomplished 
by  the  collection  of  material  through  the  legislative  refer- 
ence bureau  or  the  state  library.  This  information  might 
be  digested  by  a  small,  appointed  commission,  not  neces- 
sarily members  of  the  convention,2  authorized  to  prepare  a 
draft  of  a  constitution  to  be  submitted  to  the  convention,  in 
which  case  the  members  of  the  commission,  if  not  elected  as 
members  of  the  convention  might  be  given  a  right  to  the 
floor  for  purposes  of  discussion.  Or  again,  should  some 
of  the  delegates  be  elected  at  large,  these  by  arrangement 
could  serve  as  a  committee  to  draft  a  constitution,  calling 
the  convention  as  a  whole  at  a  later  date,  when  the  com- 
mittee was  prepared  to  report.  If,  however,  it  should  seem 
best  that  the  convention  have  full  control  over  this  matter, 
it  might  on  assembling  appoint  such  a  committee  and  then 
adjourn  for  thirty  or  sixty  days  awaiting  a  report. 

1  It  might  be  remembered  that  the  convention  that  made  the  national 
constitution  had  in  attendance  fifty-five  members  only,  forty  of  whom 
signed  the  constitution. 

2  New  York  uses  such  commissions  to  prepare  material  for  its  constitu- 
tional conventions;  note  especially  the  Commissions  of  1891  and  1914. 


THE   ELECTORATE  AND   LAW  277 

III.  THE  LEGISLATURE 

Of  the  three  historic  departments  of  government  the  law- 
making  body  necessarily  is  the  most  important.  Whatever 
powers  a  state  has  under  the  national  constitution,  inhere 
in  the  legislature  except  in  so  far  as  they  have  been  for- 
bidden to  it  or  otherwise  delegated  by  the  convention 
in  formulating  the  constitution.  These  two  lawmaking 
bodies  unitedly  deserve  the  blame  for  defective  legislation 
and  inefficient  administration.  No  system  of  reorganiza- 
tion in  state  government  therefore,  would  be  effective  that 
failed  to  take  into  account  the  possibility  of  improvement 
in  present  legislative  organization  and  procedure.  Un\ 
fortunately  the  present  popular  attitude  towards  the  legis- ) 
lature  is  destructive  rather  than  constructive.  This  atti-y 
tude  in  general  consists  in  assuming  the  dishonesty  and 
incompetency  of  the  lawmaking  body  and  yet  the  neces- 
sity for  its  continuance  in  its  present  form ;  varied  with  oc- 
casional threats  of  annihilation,  or  a  threat  to  substitute 
for  it  a  commission  after  the  municipal  plan.  Thus,  in  the 
constitutions  are  inserted  provisions  against  bribery,  cor- 
rupt practices  and  duplicate  officeholding,  and  attempts  are 
made  to  reduce  the  legislature's  power  of  mischief  by 
lengthy  prohibitions  on  legislative  activity,  by  fixing  in  the 
constitution  policies  which  the  legislature  may  merely 
amplify,  and  by  adding  numerous  regulations  of  its  powers 
such  as  those  in  respect  to  the  passing  of  bills.  By  contrast, 
similar  conditions  in  the  cities  have  resulted  in  carefully 
revised  charters  providing  for  new  forms  of  organization 
such  as  the  "federal,"  "commission,"  and  "general  man- 
ager" systems,  civil  service  rules,  and  a  rapid  extension  of 
the  use  of  experts  in  municipal  service  in  place  of  the  old 
time  spoils-seeker.  Unquestionably  similar  changes  will 


278          AMERICAN  STATE   CONSTITUTIONS 

soon  be  demanded  in  state  systems,  so  that  one  may  an- 
ticipate a  breaking  away  from  the  older  traditions  towards 
experiments  in  improved  governmental  machinery. 

Fortunately  the  principles  that  ultimately  should  prevail 
are  rapidly  becoming  familiar  through  experimentations  in 
local  government,  in  cities  and  in  counties,  so  that  the 
experience  of  these  will  throw  light  on  the  problems  of  their 
states.  In  municipal  reform,  for  illustration,  the  principle 
has  become  well  established  that  in  place  of  the  old  time 
double  chamber  there  should  be  a  single  legislative  house 
V  or  even  a  board  or  commission.  At  present  no  one  of  the 
\forty-eight  states  has  adopted  the  plan  of  a  unicameral 
legislature,  yet  the  movement  in  that  direction  has  defi- 
nitely begun  in  several  states,1  and  undoubtedly  it  is  a  mere 
matter  of  time  before  the  experiment  will  be  made.  Pre- 
sumably a  bicameral  system  is  suited  to  an  aristocracy  where 
class  distinctions  are  emphasized;  or  to  a  federation  in 
which  a  second  house  may  represent  the  constituent  states 
or  commonwealths ;  but  a  democracy  naturally  expresses 
itself  through  a  single  house,  elected  by  and  responsible  to 
the  electorate.  The  eighteenth  century  demand  for  "check 
and  balance,"  which  was  then  satisfied  by  evolving  the  gov- 
ernor's council  into  a  legislative  senate,  can  now  be  met  by 
the  governor's  message  and  veto,  and  by  the  statutory 
initiative  and  referendum.  In  all  the  states  with  the  few 
exceptions  mentioned  in  Chapter  XVI,  the  senate  and  the 
house  both  are  practically  based  on  equal  population  dis- 
tricts, so  that  they  represent  the  same  kind  of  interests. 
In  experience  the  two-house  system  has  not  worked  well  in 
the  United  States,  neither  in  the  cities  nor  in  the  states.  It 

1  For  example,  in  Oregon,  Ohio,  Oklahoma,  Nebraska  and  Kansas. 
Amendments  of  this  sort  were  voted  on,  1914,  in  Oregon  and  Oklahoma, 
but  were  defeated. 


THE  ELECTORATE  AND  LAW  279 

results  in  political  bargaining,  deadlocks,  a  lack  of  legis- 
lative responsibility  and  a  multiplication  of  useless  legis- 
lation. Furthermore  the  labor  and  expense  are  entirely 
out  of  all  proportion  to  the  returns. 

Bulletin  Number  Four  of  the  Nebraska  Legislative 
Reference  Bureau  gives  a  summary  of  the  expenses  of  the 
last  sessions  (1913-1914)  of  the  several  state  legislatures. 
The  expenses  of  thirty-eight  states  are  given  in  approximate 
figures,  under-  rather  than  over-stated.  If  the  average  of 
these  is  taken  as  the  expense  of  each  of  the  remaining  ten 
states,  and  the  proper  additions  and  subtractions  made  for 
states  having  annual  or  quadrennial  sessions,  it  would  seem 
that  the  biennial  expense  of  our  legislative  sessions  is  about 
fourteen  and  one  quarter  millions  of  dollars.  No  one  for  a 
moment  supposes  that  the  states  get  their  money's  worth 
in  return  for  this  enormous  expenditure.  Unquestionably 
better  results  might  be  secured  at  half  the  cost  under  a  more 
efficient  system.  Yet  to  this  heavy  drain  on  the  treasury 
of  the  states  should  be  added  the  additional  expense  of  use- 
less and  wasteful  administration  and  the  burden  of  needless 
litigation  necessitated  by  defective  laws. 

A  single-house  system,  however,  of  itself  would  be  of  small 
importance.  It  should  be  supplemented  by  careful  atten- 
tion to  the  personnel  of  its  membership.  This  need  not 
necessarily  be  composed  of  experts  in  legislation,  but  should 
in  any  event  be  made  up  of  intelligent  men  of  character  and 
experience  in  affairs,  so  that  they  can  give  proper  considera- 
tion to  the  important  duties  entrusted  to  them.  Such  men 
who  can  give  time  to  public  affairs  are  not  numerous,  so 
that  even  the  single  house  should  not  be  too  large;  pref- 
erably the  senate  rather  than  the  house  should  be  retained.1 

1  Yet  an  Ohio  amendment  reducing  the  size  of  the  membership  of  both 
houses  was  decisively  rejected,  1913. 


280          AMERICAN   STATE   CONSTITUTIONS 

These  members  should  be  elected  from  large  districts  made 
up  on  the  basis  of  census  population,  not  necessarily  single- 
member  districts,  for  a  useful  system  of  minority  or  pro- 
portional representation  may  sometime  be  devised.  Pos- 
sibly as  an  alternative,  a  part  might  be  elected  at  large  and 
others  from  districts.  In  that  case  those  elected  at  large 
would  presumably  be  leaders  and  chairmen  in  the  work  of 
legislation.  The  age  qualification  should  certainly  be  that 
of  the  senate  not  the  house,  for  older  men  of  experience  are 
best  in  counsel,  though  younger  men  might  prove  more 
capable  in  administration.  If  members  were  elected  by  the 
class  system,  one  half  or  one  third  at  a  time,  continuity 
would  be  secured  and  permanent  policies  might  be  pursued. 
The  reduction  in  number  and  the  scaling  down  of  useless 
expenses  would  allow  the  payment  of  larger  annual  salaries, 
so  generous  as  to  enable  legislators  to  live  honestly  and 
comfortably  on  their  salaries.  Every  attempt  should  be 
made  to  have  the  position  of  legislator  become  one  of 
dignity,  so  that  the  office  would  appeal  to  a  more  capable 
set  of  citizens  than  those  who  ordinarily  serve  in  legis- 
latures. In  this  intense  age  a  legislator  should  have  more 
than  a  good  heart  and  patriotic  intentions,  he  should  have 
also  a  wise  head  and  a  trained  conscience,  so  that  he  will 
represent,  not  the  average  man,  but  rather  what  the  average 
man  aspires  to  be  —  an  intelligent,  reliable  citizen  who  does 
his  duty  with  honesty  and  industry.  Every  inducement 
should  be  made  therefore  to  persuade  such  citizens  to  offer 
themselves  as  candidates :  —  good  pay,  civic  dignity,  and 
long  tenure,  subject  of  course  to  the  recall  in  case  an  un- 
worthy choice  should  by  chance  be  made.  If  annual  or 
sessional  salaries  were  granted,  as  they  should  be,  the  time 
limit  on  legislative  sessions,  now  so  common,  should  be 
removed.  A  small  body  of  well  paid,  capable  men  would 


THE  ELECTORATE  AND   LAW  281 

naturally  adjourn  when  they  had  completed  their  tasks, 
and  could  reassemble  whenever  there  seemed  to  be  need 
of  their  services. 

Such  a  reorganization  as  that  suggested  above  would 
necessitate  a  complete  readjustment  of  rules  of  procedure, 
committees,  and  methods  employed  in  the  legislative  con- 
sideration of  bills.  Unquestionably  local,  private,  and  spe- 
cial legislation  should  be  handled  separately  from  general 
bills.  Much  of  that  sort  of  legislation  should  become  admin- 
istrative and  be  delegated  to  the  proper  departments  for 
settlement.  The  services  of  experts  could  be  used  advan- 
tageously in  preparing  material  for  legislative  consideration 
and  in  the  drafting  of  bills ;  administrative  officers  voiced 
through  the  governor  could  prepare  a  budget  of  estimated 
receipts  and  expenditures  for  the  consideration  of  the 
legislature ;  and,  if  it  were  deemed  wise,  these  administra- 
tive heads  might  on  set  days  be  given  the  privilege  of  the 
floor  for  purposes  of  questioning  and  explanation.  The 
present  steering  committee,  or  the  committee  on  rules, 
might  well  be  recognized  as  the  leadership  of  the  house 
or  houses  in  legislation. 

Furthermore  states  should  make  it  a  matter  of  pride  to 
elect  their  legislators  on  local  issues  and  platforms,  barring 
the  use  of  national  party  names  from  state  parties.  Now 
that  presidential  electors  and  the  membership  of  both 
houses  of  congress  are  elected  by  popular  vote,  there  is  no 
reason  aside  from  partisanship,  why  national  policies  should 
be  confused  with  state  and  municipal  issues,  so  that  the 
ultimate  separation  of  national  from  state  and  local  elec- 
tions, using  alternate  years,  will  become  inevitable.  States 
must  soon  realize  the  importance  of  concentrating  the 
attention  of  their  electorates  on  their  own  domestic 
problems,  apart  from  consideration  of  national  issues. 


282  AMERICAN  STATE   CONSTITUTIONS 

These   also  would   gain   in   comprehension  if   electorates 
should  study  them  apart  from  state  issues. 

Numerous  constitutional  restrictions  on  procedure  prove 
often  to  be  a  serious  handicap  in  legislating,  so  that  a  sys- 
tem of  " unanimous  consent"  or  "suspension  of  the  rules" 
becomes  inevitable.  Rules  should  be  observed  and  com- 
mittees should  be  efficient  and  report  their  bills  promptly 
and  after  due  consideration,  yet  it  is  doubtful  whether  any 
provisions  in  a  constitution  can  remedy  the  evil.1  This  is 
deep  rooted  and  is  the  result  of  partyism,  bossism,  the  spoils 
system  and  inefficient  governmental  organization.  The 
politician  simply  pits  his  brain  against  the  law  and  evades  it. 
In  the  national  congress  each  house  determines  its  own 
rules  of  procedure  and  is  not  hampered  by  constitutional 
provisions.  States  might  well  do  likewise  if  only  they 
would  first  reorganize  their  legislatures  and  aim  to  elect  as 
legislators  citizens  who  would  forget  partisanship  and  take 
jijreal  interest  in  the  welfare  of  the  state. 

A  little  reflection  would  show  that  a  body  of  one  hundred 
and  fifty  to  one  hundred  and  seventy-five  men  of  opposite 
parties,  largely  new  in  legislative  experience,  limited  to  a 
sixty  day  biennial  session,  working  through  two  houses  and 
numerous  committees,  cannot  give  careful  attention  to  some 
fifteen  hundred  to  two  thousand  bills  introduced  by  the 
members,  and  to  the  complex  details  of  finance  and  appro- 
priation bills ;  studying  these  in  committee,  debating,  ex- 
plaining, or  amending  them  on  the  floor,  or  listening  to  citi- 
zens at  public  hearings.  Of  necessity  most  bills  are  hastily 
and  wretchedly  worded;  if  reported  favorably  they  are 
often  passed  without  debate,  in  a  perfunctory  way,  without 

1  For  legislative  reports  on  a  revised  procedure,  see  New  York's  report 
made  in  1895  through  a  commission;  and  Bulletin  Number  Four,  Nebraska 
Legislative  Reference  Bureau. 


THE  ELECTORATE  AND  LAW  283 

adequate  explanation  or  examination,  sometimes  in  a  wild 
rush  at  the  end  of  the  session,  in  the  midst  of  a  confusion 
too  great  even  for  the  clerks  to  record  properly  what  is  tak- 
ing place.  It  is  not  strange  that  under  such  conditions  the 
governor's  veto  comes  in  as  the  final  umpire,  —  vetoing  after 
adjournment  the  worst  of  the  bills  and  dropping  from  appro- 
priation bills  those  items  that  in  his  opinion  are  without  jus- 
tification. The  growth  of  the  governor's  veto  has  kept  step 
with  the  growing  recognition  of  legislative  incompetence.^ 
Assuming  that  statutory  legislation  will  slowly  develop 
in  quality  under  the  present  demand  for  improved  laws, 
there  should  come  an  insistence  that  legislation  be  based  on 
thorough  studies  made  through  experts  and  framed  so  care- 
fully that  each  particular  piece  of  lawmaking  may  stand  out 
as  a  model  of  legislative  capacity.  Legislators  should  take 
as  much  pride  in  the  scientific  accuracy  and  applicability 
of  their  laws  as  an  Edison  might  in  the  improvement  of  his 
inventions.  Surely  no  greater  honor  can  come  to  a  man  than 
the  privilege  of  formulating  and  fathering  a  law  that  voices 
the  constructive  trend  of  the  times  and  benefits  the  state 
in  which  his  life  is  spent ! 

1  Mr.  Tom  Finty  of  the  Dallas  News  thus  summarizes  the  work  of  the 
thirty-third  (Texas)  legislature: 

"Many  measures  of  considerable  merit  failed  of  passage;  others  were 
passed  in  imperfect  form,  either  through  lack  of  effort  to  perfect  the  same 
or  by  reason  of  amendments  offered  in  ignorance  or  malice.  The  really  big 
things,  such  as  riddance  of  the  statutes  of  useless  laws,  the  removal  there- 
from of  errors  committed  by  former  Legislatures  and  the  adjustment  of 
codes  to  meet  changed  conditions,  were  not  even  undertaken,  except  in  one 
instance.  Hundreds  of  bills  were  rushed  through  pell  mell  and  without 
opportunity  for  anyone  to  understand  them.  It  has  developed  that  some 
of  these  were  useless ;  others  defective  and  still  others  harmful.  How  many 
bills  were  thus  objectionable  is  not  yet  known  —  if  not  many,  then  it  must 
be  that  the  Thirty-Third  Legislature  has  a  lucky  star.  The  writer  b« 
that  in  the  circumstances  the  Legislature  has  done  well,  and  that  it  dr- 
the  epitaph  inscribed  for  Mark  Twain's  cowboy:  'He  done  his  durndest, 
angels  could  do  no  more.'" 


284          AMERICAN 'STATE   CONSTITUTIONS 

In  respect  to  the  statutory  initiative  and  referendum  it 
would  seem  advisable  to  have  these  powers  reserved  by  con- 
stitution to  the  electorate.  Yet  the  electorate  should  not 
take  the  place  of  the  legislature  in  lawmaking  and  the 
initiative  and  referendum  should  be  used  merely  as  a  last 
resort.  Measures  initiated  should  properly  be  worded  by 
the  state's  drafting  department,  submitted  to  the  legislature 
for  action,  and  given  a  fair  and  careful  consideration.  An 
intelligent  legislature  would  do  so,  but  in  case  of  no  action, 
the  secretary  of  state  might  be  instructed  to  refer  the  bill 
to  the  electorate.  Laws  made  by  the  electorate  presumably 
should  be  altered  or  repealed  only  with  its  consent,  yet 
this  would  introduce  into  legislation  another  kind  of  pro- 
cedure in  lawmaking ;  —  to  constitutional  provisions  and 
legislative  statutes  would  be  added  laws  made  by  elec- 
torates. This  is  unfortunate  but  temporarily  necessary. 
When  legislatures  again  return  to  popular  favor,  the  third 
sort  will  probably  rarely  be  formulated.  Even  now  such 
laws  are  relatively  few  in  number,1  and  the  exceptions  are 
mainly  in  those  states,  like  Oregon  and  California,  where  boss- 
ism  had  long  prevailed  and  a  sort  of  house-cleaning  had  to 
be  made.  As  needed  readjustments  are  made,  there  will 
be  less  and  less  necessity  for  the  use  of  the  initiative  and 
referendum  in  statutory  legislation.  It  is  to  be  hoped  also 
that  as  scientific  management  and  the  efficiency  movement 
make  headway  in  business  circles,  applications  of  these 
principles  will  be  made  to  government,  so  that  one  may 
confidently  anticipate  in  the  near  future  real  improvements 
in  legislative  and  administrative  systems. 

1  See,  Equity,  January,  1913,  pp.  34-47. 


CHAPTER  XXII 

THE  EXECUTIVE,   THE  ADMINISTRATION  AND  THE 
JUDICIARY 

I.   THE  EXECUTIVE 

ALTHOUGH  for  many  years  the  state  executive  has  been 
growing  in  popular  favor  and  political  importance,  his 
power  in  administration  is  still  weak  by  comparison  with 
his  power  over  legislation.  The  national  theory  of  an 
executive,  who  is  likewise  head  of  the  administration,  has 
not  on  the  whole  found  favor  in  the  states.  It  may  be 
that  these  are  wiser  in  this  than  the  national  government, 
and  that  the  burden  of  administration  is  too  heavy  a  load 
to  place  on  the  shoulders  of  a  conscientious  governor. 
There  is  certainly  need  of  centralizing  administration  under 
a  responsible  head,  but  possibly  that  might  best  be  accom- 
plished by  developing  a  premiership  from  among  the  heads 
of  administration,  leaving  to  the  governor  general  super- 
visory powers,  including  the  right  to  suspend  from  office 
and  to  order  investigations  of  suspected  branches  of  admin- 
istration. 

Aside  from  a  supervision  over  administration  the  governor 
has  many  other  duties  to  perform.  As  the  voice  and  per- 
sonification of  the  personality  of  the  state  he  has  a  large 
social  function  which  in  some  states  is  a  heavy  drain  on  his 
nervous  energy.  As  the  head  of  the  state  militia  his  duties 
might  become  really  onerous  in  case  of  riot  or  war.  His 
serious  task  however  arises  from  his  connection  with  the 

285 


286          AMERICAN  STATE   CONSTITUTIONS 

legislature.  Through  his  message  and  veto  he  must  keep 
in  close  touch  with  the  needs  of  the  state  and  with  proposed 
or  possible  legislation,  serving  in  a  sense  as  the  exponent  of 
the  popular  will.  For  this  reason  it  would  be  only  a  natural 
expansion  of  his  power  to  allow  him  the  privilege  of  intro- 
ducing along  with  his  message  bills  embodying  his  recom- 
mendations and  those  of  heads  of  departments,  with  the 
understanding  that  a  proper  time  would  be  set  apart  for 
the  discussion  of  such  bills  and  that  the  administrative 
heads  would  have  the  privilege  of  the  floor  during  the  dis- 
cussions, so  as  to  allow  opportunity  for  question  and  expla- 
nation. A  governor  who  wisely  performed"  his  legislative 
functions  only,  would  surely  have  duties  sufficient  to  task 
his  energy  and  strength,  without  the  additional  burden  of 
the  responsibilities  of  administration ;  for  necessarily  he 
would  also  continue  his  social  duties  as  head  of  the  state, 
and  presumably  should  exercise  a  general  supervisory  power 
over  administration,  so  as  to  enable  him  to  check  corruption 
and  inefficiency. 

II.   THE  ADMINISTRATION 

To  those  at  all  familiar  with  the  workings  of  govern- 
ment it  is  clearly  obvious  that  the  administration  of  the 
state  is  sadly  in  need  of  reorganization.  In  every  state 
exist  scores  of  loosely  coordinated,  virtually  independent 
departments,  boards  and  commissions,  each  nominally 
supervised  by  the  legislature,  or  governor,  or  both, 
but  all  largely  neglected  because  of  the  many  other 
duties  and  responsibilities  devolving  on  these.  The  result 
is  that  each  particular  part  of  the  administration  seeks  for 
itself  the  largest  possible  appropriation ;  conducts  its 
business  in  a  somewhat  leisurely  fashion,  chiefly  concerned 
lest  it  should  unfortunately  fail  to  use  up  its  allotment; 


GOVERNMENTAL  ADMINISTRATION          287 

and  endeavors  to  " stand  in"  with  the  powers  that  be,  so 
as  to  feel  assured  of  a  permanent  tenure  in  office  and  a  large 
appropriation.  There  are  of  course  many  conscientious 
officials  who  work  hard  and  honestly  for  the  state,  but  the 
system  is  against  them  since  it  puts  a  premium  on  time- 
serving and  sycophancy.  Few  realize  to  what  an  extent 
boards  and  commissions  control  the  most  important  in- 
terests in  the  state,  such  as  corporations,  charities,  and 
health ;  or  how  numerous  are  the  boards  to  which  are  en- 
trusted subordinate  functions,  administrative,  regulatory 
or  semi-judicial  in  kind.  Seldom  is  there  any  attempt  to 
adjust  these  properly  into  the  system  so  as  to  ensure  their 
honesty,  efficiency  and  economy.  Many  of  these  boards 
have  long  outlived  their  usefulness,  are  parasitic  by  nature, 
and  should  be  abolished.  The  remaining  boards  should  be 
unified  and  brought  into  definite  relationships  with  the 
fundamental  departments  of  government,  and  no  new 
board  should  be  created  unless  its  powers,  duties  and  dura- 
tion are  carefully  defined,  and  its  relation  to  some  existing 
department  made  emphatic. 

It  is  possible,  as  already  suggested,  that  the  respon- 
sibility for  efficiency  in  administration  might  be  placed  on 
the  governor,  as  the  "  willing  horse,"  but  it  is  plainly  im- 
possible for  him  to  give  proper  care  both  to  administration 
and  legislation.  Conceivably  the  lieutenant-governor 
might  be  removed  from  his  sinecural  position  as  presiding 
officer  in  the  senate  and  made  head  of  the  administration, 
as  a  sort  of  " business  manager"  for  the  state,  subject  to 
the  governor's  supervisory  powers,  and  having  in  admini-- 
tration  an  authority  like  that  exercised  by  the  president  in 
his  cabinet  of  administrative  heads.  Such  responsibilities 
would  certainly  dignify  this  somewhat  useless  officer,  and 
would  afford  him  excellent  training  for  a  later  promotion 


288          AMERICAN  STATE  CONSTITUTIONS 

to  the  governor's  chair.  But,  whether  under  the  governor, 
lieutenant  governor,  or  a  premier  selected  from  among  the 
heads  of  administration,  there  is  urgent  need  that  the 
loose-jointed  system  of  the  present  be  superseded  by  a 
strongly  centralized  group  of  from  five  to  ten  departments, 
among  which  should  he  divided  the  functions  now  per- 
formed by  the  existing  numerous  boards  and  commissions. 
The  heads  of  these  departments  should  serve  as  an  advisory 
cabinet  so  as  to  unify  policy  and  to  induce  economy  and 
elViciency.  The  chief  heads  of  administration  should  pref- 
erably be  elected,  but  for  long  terms  and  subject  to  re- 
moval and  recall.  Yet  if  the  " business  manager"  system 
should  be  adopted,  presumably  even  the  heads  of  depart 
ments  should  be  appointed  so  as  to  ensure  expert  service, 
though  as  a  concession  to  democracy  they  might  be  made 
subject  to  the  recall.  Subordinate  heads  of  administration 
might  better  be  appointed  during  good  behavior  but  sub- 
ject to  removal  by  the  usual  means.  Civil  service  rules 
for  employes  should  be  insisted  on,  and  promotions  made 
only  after  a  proper  examination  of  record  and  capacity. 

It  is  unfortunate  that  many  conventions  have  felt  it 
necessary  to  fix  in  constitution  the  salaries  and  per  diems 
of  the  officers  of  the  state.  Such  provisions  are  hard  to 
change  by  amendment,  since  electorates  are  inclined  to  be 
penurious  when  the  salaries  of  office-holders  arc'  concerned. 
Yet  a  fair  compensation  at  one  time  may  be  grossly  unfair 
a  few  years  later.  Again  it  is  coming  to  be  recogni/ed  in 
business,  and  partly  in  government,  that  skill  and  capacity 
are  worth  large  salaries,  and  that  it  is  poor  economy  to 
pay  beggarly  pittances  to  those  in  important  positions. 
Expert  knowledge,  qualities  of  leadership,  and  an  open- 
minded  attitude  towards  new  ideas  are  hard  to  find,  and 
when  found  in  business  readily  meet  with  adequate  pecuniary 


GOVERNMENTAL  ADMINISTRATION         289 

compensation.     The  dignity  of  state;  office  i     t  partial  re- 
ward for  services,  so  that  the  state  may  secure  th< 
of  capable  citizens  at  smaller  salaries  than  can  bu  i 
corporations.    Yet  in  order  to  get  really  HliuVnt  ofl 
the  state  must  be  able  to  offer  dignity,  social  prestige,  long 
tenure  and  a  compensation  adequate  for  proper    upport. 
There  is  a  growing  recognition  of  this  fact  in  municipal 
administration,  and  in  the  states  also  the  comjx  n  .ition 
paid  to  administrative  heads,  legislators,  and  judges,  is 
steadily  increasing.    This  is  more  true  of  governors  and 
legislators  than  of  judges  and  administrative  heads,  who 
have  been  neglected,  so  that  too  many  receive  salaries  in- 
adequate to  the  services  demanded  from  them. 

In  conclusion  it  should  be  kept  clearly  in  mind  that 
inefficient  administration  is  in  the  long  run  too  costly  a 
luxury.  Efficiency  not  only  considerably  reduces  the  ex- 
penses of  government  but  also  performs  a  far  more  useful 
service  to  the  people  of  the  state.  Many  matters  now 
neglected  in  such  functions  as,  for  example,  health,  sanita- 
tion and  civic  education,  could  be  carried  on  effectively 
without  an  additional  burden  of  taxation.  Especially 
might  the  legislature  be  relieved  from  much  routine  labor 
by  transferring  to  the  administration  the  duty  of  preparing 
a  budget  and  estimates  as  the  basis  for  state  policy  in 
finance  and  taxation ;  or  by  authorizing  the  administrat  ion 
to  make  decisions  as  to  the  advisability  and  proper  wording 
of  private,  local  and  special  bills;  or  to  redistrict  judi<  ial, 
legislative  and  administrative  districts  on  the  basis  of  a 
new  census.  Through  a  legislative  reference  bureau  also 
might  be  secured  comparative  and  historic  al  data  as  the 
basis  for  new  legislation;  and  through  experts  in  scientific 
drafting,  bills  might  be  so  worded  as  to  be  free  from  am- 
biguity and  useless  phraseology,  comprehensible  to  the 


290          AMERICAN  STATE  CONSTITUTIONS 

judiciary,  and  in  harmony  with  existing  statutes  and  the 
constitutions  of  state  and  nation.1 

III.   THE  JUDICIARY 

It  is  significant  that  at  the  present  time  the  judiciary 
system  as  a  whole  is  absorbing  a  steadily  increasing  space 
in  the  constitution  and  that  it  is  somewhat  constantly 
under  adverse  discussion.  There  is  still  much  dissatis- 
faction, notwithstanding  the  fact  that  both  judiciary  and 
judiciary  system  are  rather  completely  under  the  control 
of  the  electorate,  since  judges  are  regularly  elected  and 
conventions  pay  much  attention  to  the  courts  in  revising 
constitutions.  But  the  " short  ballot"  movement  has 
brought  to  attention  the  fact  that  popular  elections  may 
be  carried  so  far  as  to  result  in  excessive  partyism  and  the 
absence  of  a  real  democracy.  Just  as  in  administration, 
so  in  judicial  organization  there  is  great  need  that  authority 
be  centralized  and  agencies  developed  for  the  purpose  of 
making  improvements  in  law  and  judicial  procedure.  Thus 
criticisms  of  the  existing  judicial  system  usually  take  two 
forms :  —  (i)  against  the  popular  election  of  judges,  and 
(2)  against  the  needless  complexity  and  ambiguity  of  law, 
the  technicalities  of  procedure,  the  consequent  multiplica- 
tion and  protraction  of  litigation,  and  hence  in  general  the 
difficulty  of  securing  justice. 

The  demand  for  the  election  of  judges  came  originally 
as  the  result  of  a  growing  democratic  desire  on  the  part  of 
the  electorate  to  control  all  governmental  offices ;  and  also 
because  of  the  unsatisfactory  character  of  many  judges 
appointed  by  governors  or  chosen  by  legislatures.  It  is  not 
likely  that  the  voters  would  be  willing  to  surrender  their 
control  over  judges,  but  it  might  be  possible  to  substitute 

1  Under  General  Bibliography,  note  name  of  Kaiser,  J.  B. 


GOVERNMENTAL  ADMINISTRATION          291 

the  right  of  recall  for  the  right  of  election,  and  then  to 
authorize  the  supreme  court  of  the  state  to  appoint  the 
judges  of  circuit  or  district  courts  and  these  again  to  appoint 
inferior  judges,  justices  of  the  peace,  and  notary  publics. 
If  deemed  advisable,  these  appointments  might  be  referred 
to  the  governor  as  recommendations  for  formal  appoint- 
ment. Under  such  a  system  the  judges  of  the  supreme 
court  might  be  elected  at  large,  by  classes  after  the  usual 
system,  so  that  they  might  feel  their  responsibility  to  the 
electorate.  Or  they  might  be  appointed  by  the  governor 
on  recommendation  from  the  State  Bar  Association,  subject 
to  the  right  of  recall  on  the  part  of  the  electorate.  There 
should  also  exist  the  power  of  removal  for  cause  in  the  courts 
recommending  or  appointing  inferior  judges,  and  in  the 
legislature  over  the  judges  of  the  supreme  court.  A  tenure 
during  "good  behavior"  or  for  a  lengthy  term  of  years  for 
the  more  important  judgeships,  and  adequate  salaries, 
would  enhance  the  dignity  and  desirability  of  the  office 
and  hence  would  call  to  the  bench  a  more  capable  body  of 
judges.  Popular  interests  would  be  fully  safeguarded  by  a 
definite  power  of  removal  and  the  judicial  recall,  the  latter 
of  which,  however,  would  probably  seldom  be  brought  into 
use. 

If  the  bench  as  a  whole  be  improved  in  quality,  the  next 
problem  of  simplifying  law  and  procedure  would  be  easier. 
It  must  be  admitted  that  the  statutory  laws  of  most  of 
our  states  are  so  hopelessly  entangled  that  judges  rather 
should  be  commended  far  more  for  what  errors  they  avoid, 
than  blamed  for  the  errors  they  commit.  Unquestionably, 
by  general  opinion  both  popular  and  professional,  there  is 
great  need  of  simplifying,  coordinating,  and  synthesizing 
law  and  procedure,  both  civil  and  criminal.  Commissions 
from  time  to  time  do  report  to  legislatures  revised  codes, 


292          AMERICAN  STATE   CONSTITUTIONS 

statutes,  and  procedure,  but  these  bodies  are  usually 
sporadic  and  their  members  are  not  always  the  most  suit- 
able persons  for  expert  revisions.  Possibly  the  newer 
movement  arranging  for  permanent  "revisers  of  laws" 
will  provide  a  good  substitute  for  the  old-time  commission. 
Or,  as  an  alternative,  the  courts  might  be  required  to  sub- 
mit biennially  to  the  governor  bills  embodying  their  con- 
clusions as  to  changes  needed  in  the  existing  law.  These 
should  be  given  a  preferred  place  on  the  calendar,  like 
other  administrative  bills,  and  explained  at  the  proper 
time  by  the  state's  attorney.  Or,  again,  the  legislative 
reference  bureau  with  its  corps  of  bill  drafters  might  refer 
to  the  attention  of  the  courts,  or  to  the  governor,  such  in- 
congruities as  would  come  to  their  attention  while  pursuing 
investigations;  or  it  might  make  suggestions  of  improve- 
ment, based  on  the  experiences  of  other  states.  From 
social  and  economic  experts  likewise  might  readily  be  secured 
suggestions  of  change  based  on  their  experiences;  such  as 
the  introduction  of  newer  methods  of  procedure  and  of 
special  courts,  both  trial  and  conciliation,  for  the  dis- 
position of  such  cases  as  juvenile  and  first  offenders,  drunk- 
ards, domestic  relations,  and  labor  disputes. 

If  judicial  reorganization  were  definitely  undertaken, 
and  a  system  of  revision  established  as  a  permanent  policy, 
presumably  the  agitation  for  the  recall  of  judicial  decisions 
would  prove  to  be  temporary  in  nature  since  there  would 
be  no  need  to  recall  decisions  that  could  not  be  amply 
satisfied  by  an  amendment  to  the  state  constitution.  In 
any  case  the  possibilities  in  the  radicalism  of  this  form  of 
recall  are  greatly  limited  by  the  fourteenth  amendment  to 
the  national  constitution,  the  final  interpretation  of  which 
lies  beyond  the  jurisdiction  of  the  states. 


GOVERNMENTAL  ADMINISTRATION          293 

MISCELLANEOUS 

Lengthy  constitutions  are  at  present  unfortunately 
too  common.  This  tendency  is  largely  due  to  the  prev- 
alent distrust  of  legislatures,  so  that  should  these  once 
again  win  public  confidence,  constitutions  presumably 
would  diminish  in  size.  As  things  are,  it  is  useless  to 
reiterate  the  desirability  of  a  brief  constitution,  com- 
posed of  fundamental  principles,  to  be  elaborated  in  detail 
through  statute  and  ordinance  by  the  several  divisions  of 
government.  The  national  constitution  shows  the  possi- 
bility of  a  workable  short  constitution,  but  the  states  must 
be  willing  to  reorganize  in  a  somewhat  radical  way  their 
governmental  systems  before  the  short  constitution  will 
become  really  feasible.  Yet  all  signs  point  to  the  speedy 
coming  of  a  time  when  some  future  convention  will  recon- 
struct the  governmental  organization  of  its  state  so  as  to 
ensure  efficient  administration  and  careful  legislation. 

Much  of  the  undue  length  of  modern  constitutions  is 
due  to  the  insertion  of  numerous  details  which  of  necessity 
must  be  frequently  altered  by  amendment,  as  illustrated 
by  the  experiences  of  Louisiana  for  the  last  twenty  years. 
Then,  too,  large  space  is  given  to  the  setting  forth  of  de- 
tailed policies  in  respect  to  corporations,  banks,  public 
utilities  ;  finance,  taxation  and  debt ;  local  government  and 
education.  This  tendency  is  growing  out  of  all  bounds, 
so  that  whole  statutes  relating  to  such  matters  are  passing 
into  the  constitutions,  thus  destroying  the  proper  distinc- 
tion between  a  constitution  and  a  statute.  Should  legis- 
latures remain  as  they  are,  it  may  be  assumed  that  this 
distinction  really  will  break  down  through  the  intrusion  of 
statutes  and  initiated  measures  into  the  constitution.  The 
effect  of  this  will  be  an  approximation  to  the  "  unwritten 


294          AMERICAN  STATE   CONSTITUTIONS 

constitution"  idea  of  England,  since  a  constitution  will  be 
merely  a  loosely  cohering  mass  of  statutes,  easily  amended 
by  a  special  procedure,  and  differing  slightly  if  at  all  from 
the  subject  matter  of  general  statutes.  On  the  other  hand 
should  legislatures  be  reorganized  so  that  they  once  again 
gain  the  confidence  of  the  electorate,  there  is  no  reason 
why  the  constitution  of  a  state  including  a  bill  of  rights 
might  not  once  more  become  a  fairly  brief  document  of  a 
few  thousand  words.  A  bill  of  rights  may  well  be  retained 
in  the  constitutions  of  the  states,  even  though  some  of  its 
provisions  are  duplicated  in  the  national  constitution  and 
safeguarded  by  the  fourteenth  amendment.  Yet  it  is 
surely  time  that  a  revised  and  modern  bill  be  inserted  in 
some  constitution  as  a  model  for  the  twentieth  century,  as 
that  of  Virginia  was  for  the  eighteenth  century.  "  Natural 
rights"  are  obsolete,  the  civil  war  is  over,  slavery  will  never 
return,  many  rights  once  worthy  of  mention  have  now  lost 
their  importance,  and  newer  rights  as  they  come  into 
prominence  deserve  to  be  incorporated.  Certainly  also  a 
bill  embracing  some  twenty  or  twenty-five  provisions  should 
allow  ample  space  for  the  enumeration  of  all  rights  worthy 
of  mention. 

If  the  constitution  as  a  whole  be  considered,  much  im- 
provement in  form  and  matter  is  possible.  As  a  conven- 
ience, each  paragraph  should  be  numbered  as  in  the  Louisi- 
ana constitution.  Amendments  preferably  should  be  care- 
fully incorporated  into  the  body  of  the  constitution,  not 
made  as  addenda  to  the  constitution.  The  recent  improve- 
ment made  in  the  constitution  of  Vermont  by  this  process 
contrasts  well  with  the  confused  provisions  of  the  Massa- 
chusetts constitution,  where  the  amendments  of  the  last 
one  hundred  and  thirty  years,  the  amendments  to  amend- 
ments, and  the  amendments  even  to  these,  are  still  printed 


GOVERNMENTAL  ADMINISTRATION          295 

as  supplementary  to  that  hoary  document.  Again  the 
habit  of  inserting  lengthy  sections  denning  the  boundaries 
of  counties  and  of  judicial  and  legislative  districts  should  be 
discouraged.  Such  districting  is  usually  redolent  of  gerry- 
mandering and  is  unworthy  of  a  convention.  If  at  all 
necessary  under  prevalent  conditions,  such  matters  might 
better  be  passed  as  ordinances,  but  with  the  proviso  that 
alterations  made  by  the  legislature  must  be  followed  by  a 
referendum.  In  fact  for  precaution's  sake  statutory  matter 
now  too  often  inserted  in  constitutions,  might  better  be 
passed  as  ordinances,  yet  be  subject  to  change  by  ordinary 
legislative  processes  but  with  an  obligatory  referendum. 
The  schedule,  sometimes  mistakenly  inserted  in  the  con- 
stitution, properly  should  be  separate  and  classed  as  an 
ordinance,  since  its  provisions  are  temporary  in  kind.  In 
general,  finally,  the  help  of  a  body  of  drafting  experts  would 
aid  in  freeing  the  constitution  from  its  wordiness,  ambigui- 
ties, and  useless  provisions,  and  in  condensing  such  lengthy 
lists  as,  for  example,  the  numerous  sections  of  legislation 
prohibited,  into  a  generalized  paragraph  expressed  in  few 
words. 

In  conclusion  it  may  be  said  that  if  the  states  should 
succeed,  as  they  might,  in  reestablishing  their  governmental 
systems  on  firm  bases,  the  present  drift  towards  the  cen- 
tralization of  powers  into  the  federal  government  would  be 
checked.1  The  enormous  powers  entrusted  to  the  states 
by  the  national  constitution  are  most  important  for  the 
general  well-being  of  the  citizens;  but  as  long  as  state 
governments  prove  incompetent  to  handle  wisely  these 
great  interests,  especially  those  pertaining  to  health,  morals,  / 
and  corporations,  almost  inevitably  there  will  come  an 

1  See,  Article  by  Woodrow  Wilson,  The  States  and  the  Federal  Govern- 
ment, N.  Am.  Review,  Vol.  187,  pp.,  684-701. 


296          AMERICAN   STATE   CONSTITUTIONS 

insistent  demand  for  federal  intervention  and  an  assump- 
tion of  larger  authority  through  interpretation  or  amend- 
ment. An  enlargement  of  centralized  control  over  domestic 
affairs  would  be  a  result  greatly  to  be  regretted.  As  the 
United  States  grows  in  population  and  wealth,  in  com- 
merce and  in  manufactures,  there  will  be  an  ample  field  for 
federal  constructive  statesmanship  in  managing  the  inter- 
national policy  and  in  regulating  the  interests  of  the  nation 
as  a  whole,  preferably  leaving  to  the  states  even  a  larger 
jurisdiction  than  is  enjoyed  at  present,  in  proportion  as 
they  show  evidence  of  a  spirit  of  civic  efficiency  and  co- 
operation among  themselves.  After  all,  the  United  States 
of  America  is  not  an  empire  but  a  federation  of  republics : 
-"an  indestructible  Union  composed  of  indestructible 
States." 

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CROLY,  H.  D.  Progressive  Democracy.  Chapter  XIV,  Visions  of  a 
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HITCHCOCK,  H.    American  State  Constitutions.    New  York.     1887. 

HOWARD,  GEORGE  E.  Introduction  to  the  Local  Constitutional 
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HOWE,  FREDERIC  C.  Wisconsin,  An  Experiment  in  Democracy. 
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ILBERT,  COURTENAY.    (Clerk  of  the  House  of  Commons.)    Legislative 
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JAMESON,  JOHN  ALEXANDER.  On  Constitutional  Conventions. 
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JONES,  CHESTER  LLOYD.  Statute  Law  Making  in  the  United  States. 
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INDEX 


The  numbers  refer  to  pages.     Authors'  names  will  be  found  in  the 
Bibliographies 


Absentee  voting,  157 

Administration,  164-9,  226-7,  244> 
259-60,  286-90;  heads  of,  166-7, 
281,  284,  288.  See  also  Executive, 
Salaries,  Supervision 

Alabama,  74,  94,  141,  196,  225 

Alaska,  22,  108,  152 

Alien  voters.     See  Suffrage 

Amendment,  the  fifteenth,  66;  the 
fourteenth,  64,  66-7,  292;  the 
thirteenth,  63 

Amendments,  constitutional,  14, 
32-5,  105-7,  I][9>  chapter  xi,  242, 
248-52,  275 ;  number  of,  90,  106, 
149;  should  be  separate,  141,  275. 
See  also  Constitutions,  Conventions 

American  Bar  Association,  224,  227 

American  Year  Book,  90,  166 

Amnesty  proclamation,  60,  62 

Apportionment  in  state  legislatures, 
54,  185-6,  chapter  xvi 

Appropriations  for  sectarian  insti- 
tutions forbidden,  126,  131-2,  238 

Arizona,  109-10,  112,  123,  177,  181, 
192,  196,  220 

Arkansas,  59,  61,  74,  135,  149,  196, 
220 

Assembly,  general.  See  Legislative 
department 

Assessment,  236 

Australian  ballot,  156-8 

Autonomy,  local,  231-3 

Baldwin,  Governor  S.  E.,  175 

Ballot,  156-7,  159,  269,  273;  the 
Massachusetts,  157;  the  non- 
partisan,  158,  176,  271 ;  the  short, 
158,  273,  290 

Baltimore,  206 

Bill  of  rights,  8,  35,  124-7,  243,  294; 
usual  provisions  of,  125 


Bills,  drafting  of,  227-8,  274,  281, 
284,  289,  295;  legislative,  189- 
93,  282-3 ;  revenue,  189,  190 

Boards  of  administration,  165,  167, 
230,  259-60,  286-7 

Bodies-politic,  local,  230-3 

Boundaries  of  states,  121 

Bryce,  James,  8,  128,  139,  231 

Budget,  the,  168,  236,  281,  289 

Bundesrat,  212 

"Business  manager"  of  the  state, 
277,  285,  287-8 

California,  83,  90,  106-8,  169,  193, 
220-1,  231-2 

Capital  punishment,  100 

"Carpet-baggers,"  64,  69,  71,  75 

Censors,  council  of,  28,  30,  35,  47, 
80,  140 

Census,  federal,  195 

Centralization  of  administration, 
160,  166,  168-9.  See  Administra- 
tion 

Charity,  72,  108,  137,  240 

Checks  and  balances,  8,  160,  263-4, 
278 

Citizen,  native-born,  42,  243 

City,  the,  96,  195,  231,  252.  See 
Government,  municipal 

Civil  service  rules,  96,  167-8,  230, 
277 

Codification,  240-1,  291 

Colorado,  87,  177,  220 

Commissions,  administrative,  165, 
167,  234,  287.  See  Boards;  for 
constitutional  amendment  and 
revision,  29,  30,  80-3,  101-3,  117, 
145-7,  211,  249-50,  276;  for 
statutory  purposes,  241 

Committees,  legislative,  98,  190-1, 
226,  236,  281-2 


303 


304 


INDEX 


Compacts,  irrevocable,  19,  44,  50, 
70,  no,  1 20,  123 

Congress  of  the  United  States,  31, 
156,  212-3,  282 

Congressional  policy,  61,  63-8,  70 

Connecticut,  9,  25,  39,  42,  102,  204, 
209-10,  251,  chapter  xix 

Conscience,  liberty  of.  See  Reli- 
gious provisions 

Constitution,  of  the  Southern  Con- 
federacy, 9,  58 ;  prepared  by  legis- 
lature, 86,  104.  See  Convention, 
revolutionary;  the  national,  127, 
150,  266,  276,  282,  293;  the 
written,  25,  chapter  ix,  254-5 

Constitutions,  flexible  or  rigid,  10-2, 
139 ;  growth  of,  chapter  iv ;  length 
of,  39,  44,  53,  79,  m,  118-20,  242, 
256,  293-5  >  numbering  of  para- 
graphs of,  124,  242,  294;  number 
of,  51,  117;  of  the  New  England 
states.  See  New  England  States; 
parts  of,  119-24;  promulgation 
of,  145 ;  revision  of,  14,  chapter 
xi.  See  Commissions,  Conven- 
tion; stages  of  development  of, 
20-3,  118-9 

Continental  congress,  13-25 

Convention,  the  constitutional,  7, 
51,  55,  94,  116,  229-30,  248,  267-8, 
275-6;  calling  of,  143,  248-9; 
importance  of,  258 ;  membership 
of,  144,  249,  252,  275;  the  rev- 
olutionary, 25,  27-30,  34,  60,  77, 
265;  as  sovereign  authority,  35, 

i45 

Convicts,  133,  136,  239 

Corporations,  92,  94-5,  112-3,  233-4 

Corrupt  practices  acts,  158 

Corruption  in  politics,  54,  158,  239, 
252,  277 

Council,  the  executive.  See  Execu- 
tive 

Count,  the  (in  elections),  154,  156, 
158 

County,  the,  195,  206,  231-2,  243,  268 

Court,  contempt  of,  125,  181 ;  opin- 
ions of  the  supreme  court,  143, 180, 
248,  261,  268 ;  the  supreme,  173-4, 
176,  194 

Courts,  grades  of,  173,  238;  powers 
of,  172-3,  261.  See  Judicial 


Declaration  of  Independence,  4,  n, 

36,  135  ;   Rights  (English),  26,  35. 

See  Bill  of  rights 
Delaware,  27,  96,  137,  204-5 
Democracy,  n,  117,  170,  252,  278; 

period  of  developing,  chapter  v 
De  Tocqueville,  21 
Development,  five  periods  of,  20-3 ; 

since    1776,    review    of,    chapter 

xx 

Districts.     See  Judicial,  Legislative 
Dodd,  W.  F.,  24,  139 
Domiciles,  155,  157 
Dueling,  n,  155,  239-40 

Education,  108,  237-8,  272 

Educational  qualifications,  52,  88, 
91,  97,  104,  150-1,  154,  247,  262, 
272 

Efficiency  movement,  165,  167,  230, 
260,  283-4,  288-9 

Elections,  chapter  xii ;  times  of,  38, 
156,  281 

Electorate,  122,  150,  170,  215-6, 
257,  262-5,  269,  271-4,  285-6; 
powers  of  the,  273 

"Emergency"  clause,  192-3,  217-8 

Eminent  domain,  97,  126,  234 

Employers'  liability,  107,  238-9 

Enabling  act,  18,  44 

Enabling  act  (for  initiative  and  ref- 
erendum), 218 

Enacting  clause,  119 

English  system,  the,  226-7,  255 

Equalization,  boards  of,  227,  236 

Equity,  179,  217,  233,  284 

Executive  council,  37,  53,  164,  244, 
289 ;  department,  chapter  xiii, 
258-9,  285-6.  See  Administra- 
tion, Governor;  powers,  160,  258-9 

Expansion,  national,  21-2,  108 

Ex  parte  William  H.  McCardle,  65 

Federal  government,  chapter  i,  295- 
6.  See  Constitution,  the  national 

Federalist,  the,  51 

Federation,  i,  13,  296 

Field,  David  Dudley,  179 

Finance,  165,  167,  235-7,  246 

Finty,  Tom,  on  the  thirty-third 
(Texas)  legislature,  283 

Flexibility.     See  Constitutions 

Florida,  76,  1 66,  196 


INDEX 


305 


Franchises,  126,  235-7,  246 
Frankland,    State     of     (Franklin), 
3i,  136 

Georgia,  29,  40,  75,  205 
Gerrymandering,  113,  295 
God,  denial  of  His  existence,  135  ;  in 
the  constitution,  74,  119,  128,  134- 

5,  137 
Government,   municipal,    170,    217, 

223,  231-3,  246,  268-9,  277-8 
Governor,   160-4,   244,   258-9,   283, 

285-6;    messages  of  the,  162,  225, 

259,  286 ;     powers  of  the,  162-4, 

244,  285-6;     term  of  office,  161, 

259.     See  also  Executive 
"Grandfather  clause,"  94,  123,  149, 

152 
Grand  jury,  178 

Habeas  corpus,  10,  65,  125 
Haines,  C.  G.,  8,  28 
Homestead  laws,  18,  85,  240 
House  of  representatives  (national), 

212-3 
Houston,  Rev.  Samuel,  136 

Idaho,  108,  197,  221 

Illinois,  81,  142 

Impeachment,  180 

Improvements  in  state  constitutions, 
254,  chapters  xxi,  xxii 

Indestructible  union,  4,  68,  296 

Indiana,  46,  83,  104-5 

Initiative  and  referendum,  consti- 
tutional, 105, 107, 117, 147-9,  217, 
258;  direct,  148,  217,  274;  in- 
direct, 148,  217;  statutory,  104, 
107,  215-24,  278,  284.  See  Refer- 
endum 

Instrument  of  government,  254 

"Intention"  voters,  54,  94,  106,  150 

Interests,  constitutional  regulation 
of,  chapter  xviii 

Iowa,  197 

Jacksonian  democracy,  21,  51 
Jameson,  J.  Franklin,  2,  259 
Jameson,  John  Alexander,    20,  49, 

116,  143 

Jefferson,  Thomas,  20,  116 
Johnson,  President,  60-3,  67 
Judges,  appointment  or  election  of, 


38,  175-6,  248,  290-1;  tenure  of, 
53,  i75~6>  248,  261,  291 

Judicial  department,  38,  53-4,  chap- 
ter xiv,  248,  261-2,  290-2 ;  deci- 
sions, 177,  180;  districts,  173,  175, 
179,  261 

Jurors,   religious  qualifications  for, 

130,  i3S 

Jury,  125,  178-9;    the  judge  of  law 

and  fact,  178-9 
Justice,  substantial,  181 
Juvenile  courts,  93 

Kansas,  47,  51,  134,  157,  197 
Kentucky,  16,  31,  59,  92,  132 

Labor,  238-9 

Laboratories,  political,  147 

Land,  237-8 

Law,  7,  115-6,  225,  254-5,  257,  291 

Legal  sovereign.     See  Sovereign 

Legislation,  efficient,  283  ;  local,  pri- 
vate or  special,  191,  224-7,  246, 
281,  289 

Legislative  department,  chapter  xv, 
182,  265-7,  277-84;  distrust  of 
the,  120 ;  expense  of  the,  267,  279 ; 
limitations  on  the,  chapter  xvii, 
53-4,  223-4,  246,  266-7;  member- 
ship of  the,  183-5,  267;  names  of 
the,  183 ;  organization  of  the, 
chapter  xv;  powers  of  the,  255, 
277.  See  also  Committees,  Pro- 
cedure, Representation,  Unicameral 

Legislative  districts,  124,  186,  258, 
266,  chapter  xvi;  reference  bu- 
reaus, 227,  274,  276,  289,  292 

Legislators,  capacity  of,  224-5,  23°> 
279-80;  salaries  of,  187-8,  245, 
280;  terms  of,  186 

Libel,  126,  1 80 

Lieutenant- Governor,  164,  244,  287 

Lincoln,  President,  57,  60,  62,  66 

Local  government,  98,  106,  230-3 

Lockean  teachings,  26,  255 

Longworth  Act,  99,  105,  141 

Los  Angeles,  170 

Louisiana,  45-6,  49,  61,  76,  90,  93, 

131,  172,  198 

Magna  Carta,  35 

Maine,  16,  43,  82,  104,  130,  146,  198, 
207,  219,  chapter  xix 


INDEX 


Majority  of  all  voters,  46,  54,  81,  99, 

104,  113,  141,  144,  147 
Maryland,  29,  40,  48-9,  53,  59,  79, 

130,  J33>  135,  206 
Massachusetts,  26,  42,  104,  137,  207, 

294,  chapter  xix 
Michigan,  54,  81,  97,  128,  131,  133, 

146,  191,  222-3 
Military  service  and  exemption  from, 

130-1 

Minimum  wage,  107,  239 
Minister  of  the  gospel,  130-1,  136 
Minnesota,  44,  50,  84 
Minority    representation,    81,    159, 

280 
Miscellaneous,   123,   136-8,  179-81, 

237-41,  293-6 

Mississippi,  71,  91,  132-3,  135,  198 
Missouri,  44-5,  59,  77-8,  133,  198-9, 

219-20 

Montana,  108,  131,  199,  219 
Montesquieu,  8,  255,  263 
Morals,  regulation  of  social,  240,  246 
Mortgages,  235 
Municipal.     See  Government 

National.     See  Constitution,  Federal 
National  civic  federation,  227 
Nebraska,  86,  141,  221,  279 
Nevada,  5,  85,  219 
New  England  States,  100-4,  IIO>  118, 

183,  207-12,  225,  chapter  xix 
New  Hampshire,  27,  82,    100,  129, 

137,  199,  208,  chapter  xix 
New  Haven,  210 
New  Jersey,  28,  83,  200 
New  Mexico,  1 8,  109-10,    112,    123, 

136,  191,  220 

New  Orleans,  93,  172,  198 
New  York  State,  30,  41,  80,  89,  96, 

146,  2OO-I,  276 

North  Carolina,  29,  58,  75,  147,  201 
North  Dakota,  108,  129,  222,  237 
Northwest    Ordinance.     See     Ordi- 


Oaths  or  affirmations,  91,  113,  129, 

!35,  239-40 
Ohio,  44,  82, 98-100,  201-2,  222,  233, 

279. 
Oklahoma,  95,  109,  111-3,  I23>  HQ, 

194,  219 
"Old  soldier"  clause,  152 


Oligarchy,  195,  247,  252 

Opinions  of  the  supreme  court.     See 

Court 
Ordinance  of  1787,  9,  18,  20,  44,  no, 

194 
Ordinances  of  conventions,  92,  95, 

123-4,    295;        irrevocable.     See 

Compacts 
Oregon,  90,   105-6,   147,   159,   169, 

215,  218 
Oregon  plan,  106,  113,  296 

Paine's  Common  Sense,  n 
Paramount  authority,  68,  72-6,  79, 

85,92 

Pardon,  power  in,  162,  244 
Parties,  political,  158-9,  264-5,  271, 

281 

Passes,  free,  136,  239 
Pennsylvania,  28,  35,  82,  202 
Petition,  initiative,  148,  217;   recall, 

170-1 

Pierpont  government,  60 
Plato's  Republic,  270 
Poll  tax,  73-4,  106-7,  153,  !55>  235, 

272 

Polygamy,  n,  130 
Powers,  concurrent,  4;    implied,  3; 

war,  1 60,  162,  244.     See  Separa- 
tion of,  Sovereign 
Preamble,  35,  43,  121 
Primaries,  156,  158-9 
Procedure,   legislative,   98,    188-93, 

281-3 

Prohibition,  82,  88,  106,  240,  246 
Property  exempt  from  taxation,  133, 

235;  qualification,  54,  101,  151-2, 

154,  247,  262-3 
Proportional     representation,    .106, 

159,  280 

Protestantism,  36,  83,  137-8 
Providence,  the  city  and  county  of, 

206,  2io-i 
Provisions  of  existing  constitutions, 

part  ii ;    religious,  chapter  x 
Publication,  142,  226,  274 
Publications,  series  of  state,  273-4 
Publicity  pamphlets.       See   Voter's 

pamphlet 

Quadrennial  term  (legislative),  91, 

94,  156,  186 
Quakers,  131 


INDEX 


307 


Qualifications.    See  Property,  Reli- 
gious, Suffrage 
Quorum,  190-1 

Radicalism,  n,  22,  43,  106-7,  IO9> 
292 

Ratification,  14,  35,  60,  119,  123 

Ratio,  185-6,  195.     See  chapter  xvi 

Recall,  the,  169-71,  288 ;  the  general, 
106-7,170;  the  judicial,  no,  170, 
177-8,  261,  291;  of  judicial  deci- 
sions, 177,  261,  292 

Reconstruction,  60-6,  chapters  vi, 
vii;  acts,  64-5 

Referendum,  chapter  iii,  27,  44,  96, 
112,  143,  145,  170,  223.  See 
Initiative 

Registration  of  voters,  153-4,  263, 
272;  life,  154 

Religious  provisions,  36,  53,  chapter 
x ;  freedom,  1 28-34 ;  intolerance, 
128,135-6;  qualifications,  128-9, 
135;  tests,  129-30,  135,  258.  See 
Appropriations,  Sectarian 

Removal  of  public  officers  (article), 
167 

Reorganization,  governmental,  254, 
chapters  xxi,  xxii 

Representation,  54,  chapter  xvi, 
185-6;  in  the  national  congress, 
212-3 

Residence  as  requirement,  155,  247 

Revenue  bills,  190,  236,  246 

Revisers  of  statutes,  228,  292 

Rhode  Island,  9,  13,  25,  39,  42,  49, 
50,  101-2,  129,  143, 146  ,  151,  206, 
210-1,  249-50.  See  chapter  xix 

Rights,  newer,  126.  See  Bill  of 
rights 

Rousseau,  263 

Sabbath,  137 
Saint  Louis,  78,  199 
Salaries  of  judges,  176-7,  291 ;  legis- 
lators,   107,    187-8,    280;      state 
officers,  107,  161,  166,  168,  230, 
288-9 

"Scalawags,"  12,  64 
Schedule,  35,  113,  123,  295 
School  funds  and  lands,  54,  236-8 
Secession,  56-60,  chapters  vi,  vii 
Secretary  of  state,  148, 166,  218,  222, 
284 


Sectarian  doctrines,  institutions,  and 
schools,  53,  84,  126,  132,  238 

Senate  of  the  United  States,  212-3 

Separation  of  church  and  state,  1 28 ; 
powers,  8,  36,  122,  160,  214,  243, 
255,  264-5 

Sequoyah,  109 

Session,  annual,  186,  245,  258;  legis- 
lative, 186-7,  266 ;  limits  to,  187, 
245,  280;  split,  107,  187,  189 

Sheriffs,  52,  248 

Slavery,  10,  51-2,  61-2,  77,  85 

South  Carolina,  27,  40,  48,  57-8,  72, 
92,  202 

South  Dakota,  108,  218 

Southern  Confederacy,  9,  57-9 

Sovereign,  legal,  257-8,  265,  274-6; 
people,  214-6,  255 

State  constitutions.  See  Constitu- 
tions 

States,  the,  and  the  Union,  chapter  i, 
296 ;  admission  of,  into  the  Union, 
chapter  ii;  diagrams  of  relation- 
ship, 6-7 ;  priority  of,  6-10 

States'  rights,  12 

Statutes,  general,  215,  283,  291-2. 
See  Legislation 

Statutory  output,  224-5,  282 

Suffrage,  22,  45,  chapter  xii,  247, 
271-3;  alien,  94,  106,  150;  a 
privilege,  272-3;  "grandfather" 
clause,  94,  123,  149,  152;  negro, 
64,  66-8,  71,  79,  86,  90,  152  ;  "old 
soldier"  clause,  152;  restrictions 
on,  22,  136,  150,  247.  See  chap- 
ter xvi;  women's,  22,  88,  98,  100- 
i,  106-7,  152-3,  262-3,  271-3. 
See  Educational,  Property,  Reli- 
gious 

Supervision  over  administration, 
164-8,  227,  244,  260,  285-6,  288 

Supreme  court.     See  Court 

Suspension  of  the  rules,  189,  282 

Tax,  inheritance,   235,   246;      poll. 

See  Poll 
Taxation,  235-7 
Taylor,  C.  F.,  269 
Tennessee,  31,  59,  61,  63,  74,  130, 

136-7 
Territories,  9,  15,  18-20,  44,  50-1, 

85-7,  1 10,  122-3 
Texas,  9,  16-7,  50,  62,  75,  202,  283 


308 


INDEX 


Texas  vs.  White,  4,  68 

Thorpe's  Constitutions,  30 

Town,  the  New  England,  184,  207- 

12,  230,  243,  268 
Township,  231-2,  268 
Trend  in  state  constitutions,  part  iii 
Tribunals  of  conciliation,  179,  238, 

292 

Unanimous  consent,  189,  282 

Unicameral  legislature,  25,  37,  256, 
278-9 

Uniform  laws,  227 

Union,  the,  chapter  i,  296;  inde- 
structible, 4,  68,  296 

Urban.     See  City 

Utah,  109,  129,  132,  203,  218 

Utah's  ordinance,  19 

Vermont,  15,  30,  37,  41,  47,  80,  137, 
146,  207-9.  See  chapter  xix 

Veto,  37,  162-4,  244-5,  259,  283; 
does  not  apply  to  amendments, 
142,  149,  163 ;  of  items  of  appro- 
priation bills,  53,  74,  76,  163,  245; 
of  items  of  any  bill,  163 ;  proce- 
dure in  the,  163,  244-5,  2595  ref- 
erendum a  form  of,  216;  time 
given  to  the  governor  for  consid- 
eration of  the,  163,  244 

Village,  the,  231-2,  243,  268 


Virginia,    28,   43,    58,    60,    73,    95, 

203 

Virginia  bill  of  rights,  n,  294 
Vote    of    aliens.     See    "Intention," 

Su/rage;  yea  and  nay,  98,   142, 

162,  191,  246 
Voter's  pamphlet,  142,  149,  217-8, 

273 
Voting  machine,  104,  157 

War  powers,  160,  162,  244 

Washington,  State  of,  108,  131,  221 

Watauga,  31 

West  Virginia,  17,  60,  84-5,  203 

Wilson,  W.,  2,  295 

Wine,  sacramental,  136 

Wisconsin,  47,  50-1,  132,  163,  165, 
174,  222 

"Wisdom  and  virtue,"  legislators 
to  be  men  of,  n,  38,  182,  255,  268 

Witnesses,  religious  test  for,  130,  135 

Women,  right  of,  to  separate  es- 
tates, 85,  240;  suffrage.  See 
Su/rage 

Wyoming,  108,  132,  203-4,  236,  239 

Yea  and  nay  vote.     See  Vote 

Year  period  set  for  revision,  33,  46, 

143 
Young  Men's  Christian  Association, 

136 


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